Two of my professors from Northwestern Law wrote this article at the end of July on the Supreme Court's Rapanos decision. Koppelman and Dana open their opinion piece by claiming that, under the Rapanos interpretation of Alito, Thomas, Scalia, and Roberts, "Americans would have to drink contaminated water, that New Orleans would have to sink into the sea, and that Congress would have no power to do anything about either." They are unhappy with the Commerce Clause jurisprudence of those four justices (though given his concurrence, I have some doubt how wedded Justice Roberts is to the Commerce Clause line that the two would have him tow.)

I take issue with three of Koppelman and Dana's assumptions. Their first problematic assumption is that the states and private actors would not step up in the absence of federal action to protect drinking water or the city of New Orleans or to protect wetlands as challenged under Rapanos. Reliance on the federal government to solve these problems also seems ill-placed given that federal flood insurance and the work of the Army Corps of Engineers created many of the dangerous situations in areas such as New Orleans by encouraging people to move into areas where otherwise sensible Americans would not attempt to live. Federal subsidies for swamp busting throughout history destroyed many of the wetlands that the federal government now purports to save, which then led to the Rapanos litigation. And historically, the states and localities have engaged in the actual work of providing clean drinking water. It is true that states and private actors have joined the federal government in efforts to destroy wetlands, but they also engaged in restoring and protecting such wetlands --- often before the federal government took any action. State efforts to protect wetlands began in the 1960's, while the federal efforts did not get really going until the mid-1970s (See fellow Commons' contributor Jonathan Adler's piece here. To assume that wetlands would not be protected absent federal action or that our drinking water would not be potable is unsupportable.

Second, it is not accurate to assume that a more limited Commerce Clause interpretation would extinguish all federal efforts at wetland protection, providing clean drinking water, or protecting hurricane-prone ports. The taxing and spending power would still allow for block grants to the states for different projects that could fund both wetland preservation and restoration, the cleaning of drinking water, and port protection. As Adler notes, the Wetland Reserve Program and the Partners for Wildlife program funded by Congress have led to successful voluntary wetland restoration --- and generally at a much more cost-effective rate of wetland protection than under the Clean Water Act provisions of Section 404 that Koppelman and Dana are worried the more conservative justices' Commerce jurisprudence would undermine.

Third, the two authors give short shrift to the ability to amend the Constitution. It is indeed a difficult process to amend the Constitution to provide Congress with greater powers as Koppelman and Dana note. But it is meant to be difficult as the founding fathers were frightened of increased government efforts to encroach into the private sphere. But if it is ridiculous to think that Congress could not regulate the quality of drinking water as Koppelman and Dana claim, then getting the super-majority required to provide such powers though amendment should not be impossible since persuading a sufficient majority of the representative public about such ridiculousness should not prove difficult. Unless, of course, a large enough majority disagrees with Koppelman and Dana's assessment and thinks in fact that the ridiculous notion is that we need the federal government to take care of every problem.