Comments on: Decisions: Clean Water Act reach limited

By: Adam White

Adam White — Mon, 19 Jun 2006 20:20:59 +0000

On the refusal-to-defend-the-statute point, that issue came up when the Clinton Administration declined to defend the anti-Miranda statute at issue in U.S. v Dickerson. Michael O’Neill, now counsel to the Senate Judiciary Committee, detailed that debate nicely in Part VII of a 2000 law review article that happens to be available for free online.

http://www.findarticles.com/p/articles/mi_qa3736/is_200001/ai_n8902410/print

Also, Walter Dellinger wrote an OLC memo, “PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES, that touched on the issue, back in 1994. There’s a 1980 OLC opinion on the subject, too.

http://www.usdoj.gov/olc/nonexcut.htm

By: Tim Dowling

Tim Dowling — Mon, 19 Jun 2006 19:17:35 +0000

It is utterly ridiculous to suggest that the federal definition of “wetland” or “waters of the United States” includes “most of the United States,” or any land on which “water occasionally trickles,” or “much of Arlington County, Virginia.” The definition is scientifically based and turns on the vegetation typically associated with wetlands. There are roughly 100 million acres in the lower 48 that fall within the federal definition, which is a small percentage of total U.S. acreage.

By: Commentator

Commentator — Mon, 19 Jun 2006 18:48:50 +0000

Which is exactly my point. Citing Grutter does no work here, except to signal what Roberts is gonna do.

By: Simon

Simon — Mon, 19 Jun 2006 18:28:05 +0000

Commentator – I didn’t see the revelance of the Grutter citation to the point I was making, and so I didn’t quote it.

By: Commentator

Commentator — Mon, 19 Jun 2006 18:13:38 +0000

Yeah, but thanks for ignoring the precedent he chose to cite in order to make his point, Simon.

By: Simon

Simon — Mon, 19 Jun 2006 18:09:53 +0000

Marc:

I believe Roberts is on record as beliving that the Court can avoid highly splintered decisions by ruling more narrowly.

I have actually previously suggested that Roberts' remarks at Georgetown have been misinterpreted, and that our Fearless Leader's primary concern is not to obtain narrow rulings per se, but rather, to promote stability in the law by handing down opinions that command as many votes as possible, in general, and avoiding these messy pluralities, in particular. Thus, I would humbly suggest that the remarks in his concurrence today ("[i]t is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act . . . Lower courts and regulated entities will now have to feel their way on a case-by-case basis") could be read to support that view.

By: Adamos

Adamos — Mon, 19 Jun 2006 17:36:27 +0000

Re Samson, can anyone tell me the difference between a “suspicionless” search and an “arbitrary” one?

By: Dan the Man

Dan the Man — Mon, 19 Jun 2006 17:34:25 +0000

I believe Roberts is on record as beliving that the Court can avoid highly splintered decisions by ruling more narrowly. One would guess that he attempted to encourage his colleagues to do that in this very case. Either Justice Scalia was unwilling to narrow the scope of his majority opinion

Eh? First Scalia didn’t write a majority opinion. He wrote a plurality opinion. Second Roberts didn’t have to join in Scalia’s plurality opinion if he didn’t want to. Since it’s only a plurality opinion and not a majority opinion, Scalia’s opinion doesn’t even have the force of a precedent.

By: Commentator

Commentator — Mon, 19 Jun 2006 17:17:08 +0000

Those aren’t the tea leaves I was talking about.

http://www.scotusblog.com/movabletype/archives/2006/06/orders_3.html

http://www.scotusblog.com/movabletype/archives/2006/06/analysis_an_una.html

By: Marc Shepherd

Marc Shepherd — Mon, 19 Jun 2006 17:09:16 +0000

I believe Roberts is on record as beliving that the Court can avoid highly splintered decisions by ruling more narrowly. One would guess that he attempted to encourage his colleagues to do that in this very case. Either Justice Scalia was unwilling to narrow the scope of his majority opinion to get Kennedy to join it; or Kennedy split hairs farther than the Chief thought he should.

Kennedy seems to be taking up O’Connor’s mantle with his “narrowing concurrences” that supply a fifth vote, but limit the scope of a majority opinion.

By: K. Nichols

K. Nichols — Mon, 19 Jun 2006 16:59:50 +0000

I am pleased to see that the Court has limited the extensive reach of the U.S. Corps with this newly restricted definition of navigable waters. However, I am left wondering if this restricted definition will also prohibit the EPA from responding to oil spills that impact intermittent streams going forward. I believe their ability to respond is predicated on an impact to a navigble water as defined in the CWA.

By: Commentator

Commentator — Mon, 19 Jun 2006 16:42:57 +0000

Note this from Roberts’ concurring opinion:

“It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U. S. 306, 325 (2003) (discussing Marks v. United States, 430 U. S. 188 (1977)). What is unusual in this instance, perhaps, is how readily the situation could have been avoided.”

Anyone want to read the tea-leaves?

By: Kent Scheidegger

Kent Scheidegger — Mon, 19 Jun 2006 15:46:23 +0000

Regarding Davis and Hammon, the Court held that the 911 call was admissible and affirmed, while the other case was reversed and remanded.

http://wid.ap.org/scotus/pdf/05-5224P.ZO.pdf

The main post has been fixed on this point.

I fully expected the state to win Samson, the parolee search case, but the fact it was 6-3 with Justice Ginsburg joining the majority is a nice extra.

http://wid.ap.org/scotus/pdf/04-9728P.ZO.pdf

By: mrshl

mrshl — Mon, 19 Jun 2006 15:12:06 +0000

That’s my impression as well, ohwilleke. Under Crawford, the 911 might get in, but a witness statement to police probably wouldn’t.

By: Hey_Porter

Hey_Porter — Mon, 19 Jun 2006 15:06:13 +0000

SG can decline to support a statute. Wikipedia (for what it’s worth) calls it a confession of judgment.