A New Constitutive Commitment to Water

INTRODUCTIONDoes the United States Constitution limit a city's ability to terminate its citizens' access to water for essential needs? As long as some minimal procedures are in place, the answer is no. A constitutional right to affordable water for drinking, hygiene, and sanitation does not exist in the United States. However, the recent water shutoffs in Detroit, as well as other water crises around the nation, such as the lead contamination epidemic in Flint, Michigan,1 suggest that at the very least, access to water should be treated as a "constitutive commitment"2 worthy of protection through legislation.Since 2013, the Detroit Water and Sewerage Department (DWSD) has terminated water service to over 50,000 households for failure to pay, and more shutoffs continue to take place.3 Although this was not the first time that the utility had disconnected water to large numbers of residents, the aggressive and widespread nature of the shutoffs in 2014 resulted in extensive media attention domestically and internationally. Shockingly, DWSD targeted households with outstanding bills of $150 or more, but did not initially disconnect water to commercial enterprises with bills that totaled hundreds of thousands of dollars.4In 2014, residents challenged these residential shutoffs through an adversary complaint, Lyda et al. v. City of Detroit et al., in the then-ongoing Detroit bankruptcy proceedings.5 The bankruptcy court dismissed the com1 plaint, which sought a six-month moratorium on the shutoffs, the restoration of water service, as well as an order requiring that DWSD implement an affordability plan. The court held that it lacked authority under the Bankruptcy Code to issue an injunction and that, even if it had such authority, the claims did not survive a motion to dismiss. Despite finding that the residents would suffer harm without access to water, the court rejected a host of arguments on the merits, including due process and equal protection claims. As part of its rationale, the court held that "there is no constitutional or fundamental right either to affordable water service or to an affordable payment plan for account arrearages."6 The U.S. District Court for the Eastern District of Michigan affirmed the bankruptcy court's decision, and the case is now pending before the Sixth Circuit.7This Article does not dispute the bankruptcy court's conclusion that no constitutional right to affordable water exists. Yet, that the Detroit water shutoffs sent shockwaves across the United States and the international community demonstrates that something is fundamentally wrong with the idea that a city can simply cut off a large swath of its population from access to water. This Article argues that access to safe and affordable drinking water has evolved into what Cass Sunstein describes as a "constitutive commitment."8 Sunstein coined the term constitutive commitments to describe statutory rights that are treated as if they are constitutional rights because they have gained a special status in our society.9 Constitutional rights are those that are either expressly set forth in the Constitution or that have been found to exist through interpretation. Yet, there are also rights that Americans hold dear-and that many might believe are constitutional rights-that are created by statute. For example, many Americans likely believe that they have a constitutional right not to have private employers discriminate against them, but they do not. This is a statutory right codified in the Civil Rights Act of 1964.10 Similarly, Social Security has come to play such an important role in American society that it has attained a status akin to a constitutional right.11 Sunstein describes these as constitutive commitments because they have "near-constitutional sturdiness" and are afforded a status above ordinary statutes and regulations.12Access to affordable water for drinking, hygiene, and sanitation should be recognized as a constitutive commitment because it has "near constitutional sturdiness. …