Monday, June 19, 2006


I just started reading Justice Scalia's opinion in Rapanos v. United States, and had to stop to make this short post. I had not followed this case, nor any of the commentary prior to the opinion, nor have I really read any commentary after the opinion was issued. I must say that my reaction to the opening paragraph of Justice Scalia's opinion is utter disgust. Here is the opening paragraph:
In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 200 miles away. . . .Regulators had informed Mr. Rapanos that his saturated fields were 'waters of the United States'. . . . that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.
The entire set of circumstances indicated in this opening paragraph I find appalling. Twelve years of criminal and civil litigation over a property owner developing his own property because government told the owner his property represented waters of the United States. Oh my. How would a person ever come to be owner of "waters of the United States" if it were really true that his land was not land but instead water? Oh, I forgot, Congress can't just regulate waters of the United States, the water in question must be navigable water, at least according to the Constitution. Oh my. . . .sometimes saturated land = navigable waters!!!!!

Note it is now some 17 years of litigation later than the United States Supreme Court cannot even today see that Congress should have no constitutional power to regulate the use of Rapanos's land. WE ARE TALKING ABOUT LAND. WE ARE NOT TALKING ABOUT NAVIGABLE WATERS OF THE UNITED STATES.

Can government really be more unjust than this? 17 YEARS. How is it possible that our system of political economy could be so messed up? Apparently there are learned justices, learned attorneys, and learned law professors who by some means can come to think it is legitimate in a system of political economy such as ours to cause so much trouble for a property owner because they somehow find it rational to conclude that "sometimes saturated land" is the same thing as "navigable waters."

How disheartening.

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