Guest Essayist: Andrew Langer

The Dissolution of the Dormant Commerce Clause:  Willson v. Black Bird Creek Marsh Co.

In The Colorado Kid, author Steven King says, “Sooner or later, everything old is new again.”  This is certainly true when it comes to issues of public policy and constitutional law.  In this essay, we discuss the concept of the “Dormant” Commerce Clause, specifically within the context of navigable waterways.  The issue of who has jurisdiction over “navigable” waters is one that remains a subject of enormous debate—especially as the environmental movement has pushed an ever-more-marginal definition of “navigability” in order to pull more waters under the jurisdiction of the federal government.

On its face, the Commerce Clause in Article I of the U.S. Constitution is straightforward:  the federal government has the power to regulate “interstate” commerce—commerce between the several states, or between the United States and other nations, sovereign tribes, etc.  Any commerce within a state is, therefore, within the regulatory jurisdiction of that state (or at least it should be, in theory).

But an interesting converse also flows from this.  As enunciated by early Supreme Court justices like John Marshall and William Johnson, though not explicitly written in Article I of the Constitution, the Commerce Clause acts to constrain state governments from interfering in interstate commerce—and that such power is “dormant” (thus the concept of a “Dormant” Commerce Clause.

The concept was fleshed out in an 1829 Supreme Court case, Willson v. Black Bird Creek Marsh Co., 27 US 245 (1829).  In that case, the owner of a sloop, Thomas Willson, had been sued by the Black Bird Creek Marsh Company for ramming his ship through a dam that had been built, in accordance with Delaware state law.  Willson argued that the dam, having been placed in a navigable waterway and therein blocking his ability to sail, interfered with interstate commerce, and was thus violative of the Commerce Clause.

Had the case been decided just over a century later, the high court might have found differently, but in his instance, the court found that the underlying Delaware law was violative of neither the Commerce Clause, nor the converse Dormant Commerce Clause.  Chief Justice Marshall wrote:

“We do not think that the [state] act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.”

Strangely enough, the High Court’s attitude towards the Commerce Clause (generally) and navigable waterway regulation (specifically) changed markedly over the next 180 years. Over the course of the century immediately following Willson, the Supreme Court steadily expanded the concept of “interstate commerce” so that it encompassed virtually any and every aspect of American life (and the regulation thereof by the federal government).  In fact, for many decades, few, if any, Supreme Court cases found such a limitation until cases like US v. Lopez, 514 US 549 (1995), which explicitly found that Congress’ power under the Commerce Clause was in fact, limited.

With regards to the power over waterways, the trajectory was similar… one of expansive deference towards federal assertion of power, only to have the Supreme Court press back in recent years.  The Clean Water Act of 1972 (CWA), building on prior water pollution laws, asserted federal jurisdiction over the health of these same “navigable” waterways.  But the concept of “navigability” changed over time—wherein in Willson, the Supreme Court found federal jurisdiction lacking in a truly “navigable” waterway, the U.S. Environmental Protection Agency and the Army Corps of Engineers (the two agencies responsible for enforcing the CWA) asserted regulatory authority over waters that could, in no reasonable way, be considered either “navigable” and in “interstate commerce” (but because of the Supreme Court’s decision in Chevron v NRDC, 467 US 837 (1984), the agencies were granted “deference” in how they interpreted the laws).

Dry patches of desert sand, patches of land that had to be put under artificial sources of water, isolated puddles… all of these were asserted to be “navigable waterways” under federal jurisdiction, largely through a bizarre bit of legalistic gymnastics.  For instance, when pressing CWA enforcement cases, the federal government would assert a “glancing goose” rule that birds that flew from state to state might want to land on a “wetland”.  Or federal lawyers might produce experts in the muskrat trade, because muskrat fur or even meat might be sold in interstate commerce.

It was only in the 2006 Rapanos decision (Rapanos v US, 547 US 715) that the Supreme Court said that enough was enough.  In that case, the High Court found that, in fact, the federal government did not have jurisdiction over marginal and isolated wetlands under the guise of protecting “navigable” waters of the United States.

In the ensuing years, the concept of “navigability” and the ensuing intersection of the Commerce Clause in justifying federal regulation of wetlands has become a hotly-contested political issue.  While Congress was controlled by the Democrats in the years after the Rapanos decision, and attempt was made to remove the concept of navigability from the Clean Water Act (in order to prevent the confusion that cases like Rapanos raised).  When this effort failed, the Obama Administration attempted to do it through the regulatory process—an effort that has been halted by the Trump Administration.

Justice Marshall and his colleagues in the majority on Willson would have been baffled by such efforts.  If a waterway that allowed a sloop to sail through it wasn’t subject to federal jurisdiction, it is fairly certain that they would have looked askance at any attempts by the federal government to regulate dry land by declaring it “navigable”.

Willson v. Black Bird Creek Marsh Company (1829) Supreme Court decision:

Andrew Langer is President of the Institute for Liberty and a Senior Fellow with Constituting America

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Another very interesting essay. As Mr. Langer said, “everything old is new again.”

    As I approached the last part of the essay I could not help thinking about how Executive Orders were given [OBama] to expand EPAs powers underCWA to cover surface water around deep coal mines. And that Trump recently rescinded that EO with his own. Wallah, the author brought us that same point.

    I still prefer Madison’s definition of Politiks versus todays exercise of it. Madison’s definition was politicking was compromising and enacting laws at the center and letting radical ideas lay dormant on the edges until the public had time to discuss, fuss, digest, and determine its proper place in America – at which time it was centrist and passable.

    While Madison’s does not always work. The people could and did not come to a common view on slavery. But few things fall into the class of slavery. For most things Madison’s polilti seems to be a prudent, sensible, balanced [publicly, politically, government branches, etc] approach. But that approach is not expedient and does not fit a world where long suffering is a defect. So the easier approach is to use Executive Orders, Court activism, and administrative over reach to force through agendas that the people have not resolves themselves. The unfortunate result is a Legislative branch that is becoming more and more irrelevant while the POTUS, SCOTUS, and bureaucracies become to emboldened and powerful. Perhaps even more disconcerting is the people are becoming more and more polarized on more and more issues. New generations are being taught to act like petulant children rather than how to have an intelligent public discourse. Thankfully the Founders knew how to be overwhelmingly passionate and incredibly pliable.



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