In Sackett v. Environmental Protection Agency, the U.S. Supreme Court narrowed the federal government’s power to protect wetlands. Justice Samuel Alito’s majority opinion insisted that the Clean Water Act (CWA) only extends to “adjacent wetlands,” construed narrowly as those having a “continuous surface connection” with water bodies.
Confronted with Justice Brett Kavanaugh’s argument that the dictionary definition of the term “adjacent” includes things that are nearby but not connected, Alito invoked an increasingly used device to avoid following the plain language of statutes demanding broad regulation to meet public goals — a presumption against alteration of the status quo that existed before the passage of legislation.
The Court required “Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the Power of government over private property.” In 2021, the Court used this clear statement rule to avoid the conclusion that authority to “prevent” interstate disease transmission authorized an eviction moratorium during the COVID pandemic. And in 2020, Justice Clarence Thomas used it to uphold a decision to authorize a natural gas pipeline under the Appalachian Trail.
This clear statement rule authorizes the justices to enact their conservative political views into law. As such, it has a lot in common with Lochnerism, a now discredited approach to judicial review prevalent in the early 20th century.
Conservatives often dislike change. By converting a bias against change into a canon of statutory interpretation, judges can license themselves to undo changes they disapprove of. And that is precisely what this presumption against alteration of the status quo ante does. It presumes that there is some kind of natural law, or perhaps common law, balance that Congress should be presumed not to have altered. This approach to statutory construction has a lot in common with thecanon counseling “strict construction” of law “in derogation of the common law” — a favorite of the Lochner-era Court.
Of course, the federal government passes laws precisely to address significant problems that require significant change — such as water pollution. And law enhances power over property when it regulates anything that a property owner might do. Usually, the federal government legislates in an area where the states have regulated in the past, so substantially all federal regulation can be said to “alter” the federal state balance. The Constitution made federal law supreme precisely to authorize the federal government to address, as Justice John Marshall put it, the “crises in human affairs,” such as the pandemic, in spite of the preexistence of states. To put it a little more directly, all law alters the status quo ante that the Court seeks to preserve, and most law does so significantly.
The famous legal scholar Karl Lewellyn once noted that some canons of statutory construction come to us from sources hostile to legislation, a rather clear reference to the Lochner Court’s use of common law baselines and statutory construction to advance liberty interests it read into the Constitution.
The same can be said here. An ignorant reader of Alito’s opinion might think that the CWA has driven mass incarceration of property owners, because he dwells on the criminal penalties in the act even though this was a civil case. He does recognize the CWA’s achievements. But like his Lochnerian predecessors, he ignores the CWA’s goals and the canon that statutes should be construed to effectuate them — a practice Lewellyn identified with the “cheerful acceptance of legislation” that we regained after the retreat from Lochnerism.
Traditionally, the Court has used clear statement rules primarily to protect constitutional values. The Lochner Court created constitutional law protecting private property and liberty interests not found anywhere in the Constitution and then protected them through extraordinary statutory construction. The Court’s Dobbs decision criticizes the Lochner Court’s “discredited … freewheeling judicial policy making.” But by suggesting that increased federal power over property should trigger extraordinarily narrow construction of legislation, the modern Court makes a regulation’s survival depend upon its “reasonableness” in the justices’ view, precisely the vice that discredited the Lochner-era Court.
The Sackett Court not only severely limited federal protection of wetlands. It also licensed itself to aggressively misconstrue statutes that the justices do not like. The Court keeps undermining its legitimacy through adoption of new devices that authorize freewheeling judicial policymaking.