Commentary
The Supreme Court’s ruling in Sackett v. Environmental Protection Agency (EPA) (pdf) follows a pattern common since the court’s Obamacare decisions: The justices trimmed back a government agency’s overreach, but failed to address the constitutionality of the statute that facilitated the overreach.
Like eight other SCOTUS opinions since 2013, the Thomas–Gorsuch concurring opinion in the Sackett case relies on my published constitutional scholarship (pdf). Naturally, I’m happy and grateful. But this will not prevent my testing the case against the Constitution.
The Constitutional Background
The Constitution granted Congress power “to regulate Commerce … among the several States.” The historical record shows this included authority over navigation (pdf). Authority over navigation, in turn, included power to govern navigable waters. Navigable waters encompass, besides seas and oceans, those lakes and rivers capable of carrying ships for transporting goods….