Federal Wetland Jurisdiction and the Power To Regulate Commerce: Searching for the Nexus in Gerke Excavating

I. INTRODUCTION Courts reviewing the constitutionality of federal wetland regulation have an elephant in the living room. While congressional regulation of intrastate wetlands may be indispensable to the preservation of our nation's environmental well-being, the basis for such power is a very complicated issue. Courts have upheld such regulations as a valid exercise of Congress's Commerce Clause power1 but have failed to conduct a thorough examination of the constitutionality of these regulations in light of more recent Commerce Clause decisions.2 The Supreme Court has generally declined to confront the issue,3 though it may in two cases for which it has granted certiorari in the 2005-2006 term: Carabell v. United States Army Corps of Engineers* and United States v. Rapanos.5 In United States v. Gerke Excavating, Inc.6 Judge Posner of the Seventh Circuit wrote a strikingly brief opinion that is exemplary of the heuristic reasoning courts use in reviewing the validity of federal wetland regulation. In this case, the Seventh Circuit upheld the constitutionality of the Federal Clean Water Act7 as applied to intrastate wetlands with a very tenuous connection to any navigable interstate waters.8 This Note argues that in upholding the Clean Water Act, the court in Gerke arrived at the correct holding, albeit with an inadequate analysis. More specifically, this Note argues that under Gonzales, Morrison, and Lopez,9 federal wetland regulation does not cleanly fit into any of the Commerce Clause's three delineated categories of permissible regulation-channels of commerce, instrumentalities or things in commerce, or activities that substantially affect interstate commerce10-and, therefore, cannot be upheld solely on the basis of the commerce power. Instead, federal wetland regulation can survive modern Commerce Clause scrutiny only under an alternative, or "at least more nuanced," conception of the commerce power that incorporates the Necessary and Proper Clause. Justice Scalia enunciated such a conception of the commerce power in his concurrence to the Court's most recent Commerce Clause decision, Gonzales v. Raich.11 This more nuanced conception of the commerce power recognizes that federal regulation of intrastate wetlands is not legitimate with the Commerce Clause as its only basis. As previously stated, wetland regulation does not fit into the three categories of activities or things that Congress may regulate under the Commerce Clause. However, the enabling power of the Necessary and Proper Clause allows Congress to regulate intrastate wetlands as an essential component of the broader federal regulation of interstate waters. Justice Scalia's conception of the interplay between the Necessary and Proper Clause and the Commerce Clause suggests that Congress could regulate noneconomic activity that substantially affects interstate commerce where that noneconomic activity falls within a broader regulatory scheme of economic activity.12 This Note proposes that, by analogy, the Necessary and Proper Clause empowers Congress to regulate intrastate wetlands as part of its broader scheme of regulating interstate waters as channels of commerce. Part II of this Note first examines the development of Commerce Clause jurisprudence, giving a detailed explanation of where it stands today and a brief survey of how it got there. Part II briefly explains what wetlands are and the history of their regulation. Part III summarizes the facts and the holding of the principal case, United States v. Gerke Excavating, Inc. Part IV highlights the analysis missed by the principal case and how federal wetland regulation could be legitimately justified under Justice Scalia's conception of the Commerce Clause as it relates to the Necessary and Proper Clause. Part V gives a brief conclusion. II. BACKGROUND A. The Commerce Clause This section will briefly survey the history of the Commerce Clause beginning from the first major Supreme Court cases, as this history is an integral part of how the Court currently interprets the scope of this provision. …