The Clean Water Act and the Court's unsatisfying reliance on "tradition"

   As many expected, the Supreme Court’s “decision” yesterday in the Clean Water Act cases only further muddied the question of the reach of the law, other than for pollution into interstate waters that are navigable by boats.  The morass cries out for a statutory, not just a regulatory, solution.  I am especially troubled by the continued reliance of Justice Scalia and the property-rights advocates on the supposed fact that land use regulation is a “quintessential state and local power.”  Citing some Supreme Court cases that made this assertion (If the Supreme Court says a fact is true, does this make it so?), the property-rights advocates have justified their restrictive Clean Water Act opinions in large part on a need to avoid the boundary of the interstate commerce power. But the conclusion that a regulatory interpretation is close to the boundary is in itself a rough decision as to where that boundary lies (without actually engaging in a thorough delineation of this boundary).  Moreover, the assertion of the supposed “tradition” of state and local control over land use ignores such developments as the national regulation of air and hazardous waste pollution, not to mention 30 some years of national regulation of water pollution.  The logic that “Congress can’t regulate land and water use because traditionally only states have done so” could have been (could still be?) used for fields such as employment (the Court struck down national employment laws before the 1930s) and discrimination (“moral” regulation was largely left to the states before the New Deal or before the 1960s).  Interpreting statutes and making rough constitutional decisions through broad generalizations about “tradition” is both unstable and unsatisfying.