June 19, 2006

Erwin Chemerinsky Is All Wet

Hatched by Dafydd

Not being an attorney, I'm not allowed to have much of an opinion on today's Supreme-Court decision in the two linked "wetlands" cases, John A. Rapanos, et ux., et al. v. United States and June Carabell, et al. v. United States Army Corps of Engineers, et al.

However, since I play a "Philadelphia lawyer" on the blog, I will spout off anyway. The Court held that it wouldn't hold anything; well, actually it held only that the lower courts that decided these cases had to rehear them to determine what "nexus" (if any) exists between the wetlands under question and "navigable waterways."

The Court didn't say what it might do with that information once it got it:

  • The four conservative members -- Chief Justice Roberts and Justices Alito, Scalia, and Thomas -- said that if the wetlands weren't at least adjacent to navigable waterways (and with a surface connection), then the Army Corps of Engineers (ACE) and Congress could not, under the act, regulate them.
  • The four liberal members -- Justices Stevens, Breyer, Ginsburg, and Souter -- opined that it wouldn't make any difference if the "wetlands" in question was in fact the sewer system of Long Beach, California; the act gives the ACE power to regulate anything it wants.
  • And alas, the "swing vote," the man with the bidirectional mind, Justice Kennedy, announced that he had no clue how he might rule once he saw the new evidence, nor what he actually thought about anything, nor even whether he would care. In fact, he literally announced that he would simply consult his Magic 7-Ball (he doesn't quite have an 8-Ball). No, seriously.

(I wonder whether Patterico or Dan Kauffman will be first to post a comment demanding to know where exactly in the Kennedy opinion does he "literally" say he will use a Magic 7-Ball...!)

Today, Hugh Hewitt had a special visitation by the "smart guys," which actually means the smart guy and the screaming schemer: John Eastman and Erwin Chemerinsky. Eastman was rational, so let's dismiss him. I want to focus on Chemerinsky.

The case hinges on what, exactly, the Clean Air and Water Act of 1972 regulates -- and secondarily, though I don't think the Court got to this question, what Congress is constitutionally allowed to regulate. But when Hugh asked Chemerinsky what (in his expert legal opinion) could be regulated by the 1972 act, Chemerinsky kept dodging the question, referring only to things where virtually everybody would agree that regulation was necessary. For example, he risibly suggested that under the Scalia approach, all a "polluter" would have to do is put his dirty factory "far enough upstream," and he could then pour anything he wanted into the river.

This of course assumes that there are no state regulations banning such pollution... because actually, all we're talking about here is whether the Army Corps of Engineers could regulate against the wishes of state agencies. The Court was not deciding whether people should be allowed to pollute rivers and streams. In fact, the case wasn't even about pollution but whether land-owners could fill-in man-made drainage ditches and small lakes unconnected with any "waterways."

There is a more urgent question that I wish Hugh had asked, but which evidently didn't occur to him: Mr. Chemerinsky, under your interpretation of the scope of the act -- what kind of wetland wouldn't fall under the jurisdiction of the federal government? Can you imagine any puddle of water anywhere that would be immune from the ACE, if they chose to issue pronouncements about it?

I suspect Chemerinsky would have had a very hard time answering that question... because in fact, everything I have ever heard him say makes me believe that the man is the opposite of a federalist: he is a nationalist (and on many issues, an internationalist). Chemerinsky seems to believe that Congress should have, and indeed does have under the Constitution, authority to mandate, regulate, or forbid any behavior in any state, county, or city anywhere in the country, with no limits whatsoever.

To me, it appears that Chemerinsky desperately wants the federal government to have general police powers over the states and local government; and that that famous list of areas where Congress can regulate, found in the United States Constitution (Article I, §8), is simply a laundry list of suggestions -- not any sort of limitation.

Penultimately, I suspect that Chemerinsky would like to see all power in the hands of the federal government... then ultimately under the control of a single, pan-national congress or parliament made up of the "anointed elites" of all nations. Am I misjudging the man?

In any event, this is a very serious argument. The wetlands in question seem to have no "nexus" to any navigable waterway stronger than the mere fact that we have a water cycle on this planet: water from everywhere gets evaporated by sunshine, then returns to the Earth as rain, falling upon every navigable waterway in the world.

If the standard governing whether a wetlands is covered by the 1972 act is that there exists any nexus at all, including the water cycle -- and if the act applies to these particular wetlands, then that must be the standard -- then Congress has given jurisdiction to the ACE to regulate any water-filled indentation at all... including your backyard swimming pool.

Hatched by Dafydd on this day, June 19, 2006, at the time of 4:42 PM

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The following hissed in response by: cdquarles


A related question, in my mind, is the conflation of emissions and pollution. Everything we do on this rock is as natural as everything else that happens on this rock.

It is clear to me, at least, that Art. 1, Section 8 is the list of things that Congress has the power to do, modified by "necessary and proper" and the successive amendments, which can only clarify the granted powers but not expand them. Part and parcel to "necessary and proper" in this case, is the recognition of the principles of toxicology. In other words, dose and route of adminstration determine if emissions are "pollution", not a conflation of them, nor an inversion of them.

The above hissed in response by: cdquarles [TypeKey Profile Page] at June 19, 2006 11:47 PM

The following hissed in response by: mbaesq

Dafydd sez:

"Penultimately, I suspect that Chemerinsky would like to see all power in the hands of the federal government... then ultimately under the control of a single, pan-national congress or parliament made up of the "anointed elites" of all nations. Am I misjudging the man?"

This is purely anecdotal, but no, you're not misjudging the man. Matter of fact you have him pretty squarely pegged. I worked briefly with Pro. Chemerinsky when he was a lecturer on Constitutional law as part of a study course to pass the California bar. Rather good lecturer too, I should add.

In casual conversation, Chemerinsky said that he had deep reservations about federalism in general, and had very little good to say about the local branch of the Federalists society. Also expressed his displeasure with the U.N. and how it and the World Court should be running things. Again, I stress that this was in a purely informal setting and I mention this as a point of interest.

Excellent blog, BTW. I'm becoming a regular reader, in spite of the questionable color/font choices. As a fellow author (non-fiction only, but I enjoy your forays into SF) I particularly appreciated your commentary on Kaavya Viswanathan.

The above hissed in response by: mbaesq [TypeKey Profile Page] at June 20, 2006 2:57 PM

The following hissed in response by: Dafydd ab Hugh


in spite of the questionable color/font choices.

I'll tell you a secret: it's mostly for me!

I have no difficulty reading ordinary print in a book or magazine; but for some reason, when I'm reading on a CRT, too much contrast -- e.g., black on white, or worse, white on black, as so many MilBlogs use -- causes me problems.

You know those optical illusions where white text on a black background causes one to see phantom grey dots? I see those by the score on high-contrast text on a monitor... then my eyes try to track these nonexistent dots, and the text jumps all around, making me seasick!

When the contrast is less, such as the brown on cream/yellow I use here, the effect is dramatically lessened.

I guessed that a number of other people might have the same problem, and that this "silent majority" is likely quite a bit larger than those who have a hard time seeing the text without more contrast.

One of these days, I'm going to pump Captain Ed for information about how he implements his "skin this site" button, and I might design a higher-contrast version for those who don't like this one. It would still have the same basic BL design, just the "parchment" would be whiter and the text would be blacker.

(I can't do much about the font; it's a standard typeface and size.)


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at June 20, 2006 5:52 PM

The following hissed in response by: mbaesq

Mr. D sez:

"I'll tell you a secret: it's mostly for me! ...Too much contrast...causes me problems."

Ah, that explains a great deal! I shoulda known that there is always a method behind the madness.

I suppose the only other answer would be to switch to a reddish-brown font against, say, an ivory backgound (or as an interior designer would say, 'sienna on eggshell'). Or, red against gray, like on Realpolitics.com. But that wouldn't quite jibe with the Lizard-scale motif.

"(I can't do much about the font; it's a standard typeface and size.)"

I should've been clearer, I only question the choice of the font's color and background, not the size and typeface itself, which is rather pleasant.

A couple of the right-leaning blogs/sites I've seen have a strange addiction to squinty-size fonts: Powerline and Weekly Standard come to mind. Perhaps they're aiming for a younger, less eyestrain-prone audience.

Again, excellent writing, regardless of the presentation.

The above hissed in response by: mbaesq [TypeKey Profile Page] at June 21, 2006 3:13 PM

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