The Volokh Conspiracy
[Jonathan Adler, September 7, 2007 at 7:44pm] Trackbacks
"Fixing" the Clean Water Act After Rapanos:

The audio of yesterday's Federalist Society program, "Enforcement of the Clean Water Act," discussing whether Congress needs to "fix" the Clean Water Act to extend federal regulatory jurisdiction after the Supreme Court's decision in Rapanos v. United States is available on-line here. I plan to post some of my thoughts about the program over the weekend.

Related Posts (on one page):

  1. "Fixing" the Clean Water Act:
  2. "Fixing" the Clean Water Act After Rapanos:
  3. Should Congress Overturn Rapanos?
Hans Bader (mail):
"Fixed" to what end? If you already have 99 percent of what you want under a law, do you really need to "fix" it to get 100 percent, when getting that last 1 percent raises serious constitutional problems?

What can't the government regulate under current law that it wants to regulate?

In practice, Justice Kennedy's concurring opinion, which some lower courts are treating as binding, allows the government so much regulatory power that it is only slightly narrower than the opinion of the four liberal justices.

Converting the liberal justices' opinion into law would only incrementally expand the government's power, which is already vast, while risking a finding by the Court that the slightly expanded law has pushed the envelope too far given the already vast reach of the statute.
9.10.2007 1:38pm
bittern (mail):
Having listened in, the biggest impression I got was that, in the scholarly discussion, nobody was changing anybody's mind about anything. Kind of like on the Volokh!
9.11.2007 10:51am

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