Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers

Federalism Revolution Advances in Supreme Court

The federalism revolution took another step forward as the Supreme Court struck down a federal agency’s expansive interpretation of the Clean Water Act in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. The interpretation by the Corps, known as the “Migratory Bird Rule,” allowed the agency to regulate even “intrastate and isolated waters” that could “be used as habitat by . . . migratory birds which cross state lines.” The Corps claimed authority under the Commerce Clause, the Constitution’s grant of federal power to regulate interstate commerce. However, the Court rejected the Corps’ interpretation, saying it would raise serious constitutional problems and “would result in a significant impingement of the States’ traditional and primary power over land and water use.”

On the heels of its successful federalism challenge to the Violence Against Women Act in U.S. v. Morrison, the Center for Individual Rights (CIR) submitted an amicus brief in Solid Waste. Morrison held that the federal government cannot regulate non-economic activity under the Commerce Clause simply because the activity has some indirect effect on interstate commerce. CIR’s brief noted that the Migratory Bird Rule would allow the Corps to regulate even backyard bird feeders visited by migratory birds. In light of Morrison, CIR argued, it’s strange to suggest that a federal agency “can regulate non-economic acts that have some long-range effect on the ability of birds . . . to travel in interstate commerce.”

Curt A. Levey, CIR’s Director of Legal & Public Affairs, said his organization is “gratified that the Supreme Court has once again made it clear that it will enforce the limits on federal power, whether it’s Congress, federal agencies, or federal prosecutors that attempt to exceed those limits, as the recent Morrison, Solid Waste, and Jones v. U.S. decisions demonstrate. Today’s decision reinforces the Court’s concern about basic tenets of federalism, including limits on the Commerce Clause power and the protection of traditional areas of state concern from federal encroachment.” Levey added that “the decision is also important because of the message it sends to federal agencies that their overly expansive regulations will be viewed skeptically by the Supreme Court.”