Too many on the Left believe that Article 3 of the Constitution, the judicial powers afforded by the Constitution, should be ignored when Congress enacts legislation that is unconstitutional.
Next June, the Supreme Court will rule in the case of Sackett v. Environmental Protection Agency. It will decide whether Congress has the authority to determine if owners of a plot of land can use that private property to build a home without first gaining permission from the EPA. In plain language, is private property still protected by the Constitution, or can the federal government at its whim seize that property by disallowing the building of a home?
SUPREME COURT CONSIDERS LIMITING FEDERAL REGULATION OF WATER POLLUTION
The statute at issue is the Clean Water Act, which finds its constitutional basis in the commerce clause, Article 1, Section 8. This clause grants Congress the power to regulate interstate commerce. That constitutional provision also grants Congress the power to “make all laws which shall be necessary and proper.” The federal courts have determined that regulation of commerce includes jurisdiction over the nation’s navigable waters. In this context, “navigable waters” does not mean dry land.
Michael and Chantell Sackett wanted to build a home near Priest Lake, Idaho. The EPA said no. The administrative agency said the Sackett property contained “wetlands” that qualified as “navigable waters” subject to regulation by the Clean Water Act.
In United States v. Riverside Bayview (1985), the Supreme Court upheld a regulation that said that “navigable waters” include “freshwater wetlands” abutting navigable waters. But later in Solid Waste Agency v. Army Corps of Engineers (2001), the Supreme Court held that an abandoned sand and gravel pit, which filled with water during periods of heavy rain but was not adjacent to navigable waters, was not deemed to be part of navigable waters.
The Sackett property lies just north of Priest Lake but is separated from the lake by several lots containing permanent structures as well as a road. The Sackett property is not adjacent to Priest Lake. To access Priest Lake from the Sackett property, a person must walk, not navigate. Human beings cannot walk on water. Water will not flow from the Sackett property into the lake.
Thus follows: The EPA has no power to deprive the Sacketts of their private property rights. In fact, under the Constitution, Congress without a declaration of eminent domain could not take the Sackett property. The EPA cannot prevent the Sacketts from exercising their property rights and building their home. A person’s property is a person’s castle.
The Constitution matters. Its plain language matters. The Constitution is not a meandering creek bed that dries up in the summer. The Constitution is constant.
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James Rogan is a former U.S. foreign service officer who later worked in finance and law for 30 years. He writes a daily note on finance and the economy, politics, sociology, and criminal justice.
