More on the Roberts Court

June 04, 2014 | By REED HOPPER

My colleague, Timothy Sandefur, posted an excellent analysis today regarding the Roberts Court’s false “modesty” in rewriting the law to save a statute from constitutional scrutiny.  His post dovetails nicely with a post I wrote in 2012 entitled Was Chief Justice Roberts’ opinion on Obamacare Predictable?  I would just add that Justice Kennedy appears to be completely “on board” with this approach to avoid invalidating an unconstitutional Act.

Although Justice Kennedy joined Justices Scalia, Thomas and Alito in condemning Justice Robert’s rewriting of the Affordable Care Act in NFIB to convert the “individual mandate” penalty into a “tax,” Justice Kennedy raised no objection to Justice Robert’s rewriting of the “chemical weapons” statute in the recent Bond v. United States decision.  Perhaps, for Justice Kennedy, it is just a matter of degree or, less charitably, he is willing to countenance the rewriting of a law he likes.  In any event, the most blatant example of Justice Kennedy’s sympathies can be found in his lone concurring opinion in Rapanos v. United States.

In Rapanos, we challenged the federal government’s regulation of unpermitted discharges to remote wetlands, under Section 404 of the Clean Water Act, as beyond the statutory language, as well as the commerce power, because the regulation of remote wetlands had nothing to do with interstate commerce under the Supreme Court’s decisions in Lopez and Morrison.  In those cases, the Supreme Court invalidated two statutory provisions that had nothing to do with commerce or any economic activity.  But the Court suggested that the statutes could have been saved had they included a “jurisdictional element” or statement that expressly limited the reach of the Act to a discrete set of activities that have an “explicit connection with or effect on interstate commerce.”

In Rapanos, a plurality of the Court determined that the language of the Clean Water Act did not authorize the regulation of remote, insubstantial water bodies and therefore avoided the constitutional question.  However, in a lone concurring opinion, Justice Kennedy read the Act to include a requirement that a regulated water body have a “significant nexus” to a downstream navigable-in-fact water.  Under this approach, Justice Kennedy believed no constitutional conflict would arise.  Justice Kennedy obviously equated a “significant nexus” to a navigable-in-fact water with a substantial effect on interstate commerce.  The problem with this, however, is that the Clean Water Act itself did not contain an express (or even implied) requirement that the regulated water body (such as a remote wetland) have any sort of connection to interstate commerce.  In effect, therefore, by requiring that the government show a “significant nexus” between a remote water body and a downstream navigable-in-fact water, Justice Kennedy was rewriting the Clean Water Act to include a jurisdictional element that would limit the reach of the Act to a discrete set of activities that have an “explicit connection with or effect on interstate commerce” as required by Lopez and Morrison.  This would save the Act from constitutional scrutiny and possible invalidation.