How the Constitution Draws a ‘Line in the Sand’ for the Extent of Federal Control Over Non-Navigable Waterways

Liberty University Law Review, Vol. 5, p. 115, 2010

36 Pages Posted: 1 Oct 2011

See all articles by Jason Heinen

Jason Heinen

affiliation not provided to SSRN

Date Written: September 30, 2011

Abstract

This Note criticizes the United States Supreme Court’s decision in Rapanos v. United States for continuing to focus on geographic boundaries for the extent of federal control over navigable and non-navigable waterways. By becoming so attenuated from the actual enumerated power, federal regulation of navigable waterways has forced the Court to begin drawing proverbial “lines in the sand” for how far upstream this federal regulation extends. For whatever reason, the Court has chosen to frustrate itself and the law over where this line should be drawn. It does this rather than acknowledge that the attenuation has gone beyond the plain meaning and purpose of the enumerated power. As a solution, this Note introduces the argument that recognizing the constitutional limitation, and only that limitation, is how the Court can determine the extent of federal power over navigable waterways and still act within the law. Any geographic “lines” or distinctions drawn are simply an arbitrary judgment by the Court to prevent federal control over even the smallest and most remote molecules of water. The Constitution provides an alternative “line,” and this “line” will allow the Court to base its limitation in law rather than politics.

Keywords: Navigable, Rapanos, Commerce Clause

Suggested Citation

Heinen, Jason, How the Constitution Draws a ‘Line in the Sand’ for the Extent of Federal Control Over Non-Navigable Waterways (September 30, 2011). Liberty University Law Review, Vol. 5, p. 115, 2010. Available at SSRN: https://ssrn.com/abstract=1936128

Jason Heinen (Contact Author)

affiliation not provided to SSRN ( email )

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