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February 1996
Volume 14, Number 2

Government for the Birds
Donald J. Boudreaux

The pattern is all-too-familiar: Congress and its bureaus of executive-branch henchmen arrogantly mock the Constitution, only to be applauded by the courts. Nowhere is this pattern more evident than the recent case of Leslie Salt Co. vs. the United States. Here are the facts.

For decades, a 153-acre tract of privately owned land in California manufactured salt. The salt manufacturer dug "crystallizing basins" to assist its production. In 1959, these basins were taken out of salt production. Because no vegetation grew in these basins, dust from the basins became a problem.

Leslie Salt Co. was then cited for air-pollution violations. To comply with the pollution laws, Leslie Salt in the mid-1980s plowed the basins' soils and put in a feeder ditch that made these basins hospitable to vegetation. To its horror, Leslie Salt later discovered that it created a federally protected wetland on its property.

When the U.S. Army Corp. of Engineers learned of Leslie Salt's ditch digging and other efforts to keep the basins from creating a dust problem, the Army Corp. issued a cease and desist order against Leslie Salt. Leslie Salt was caught in a catch-22.

At this point, Leslie Salt read the U.S. Constitution and found no grant of power allowing the federal government to tell owners of private property what these owners can do with puddles on their property. And even the federal trial court agreed with Leslie Salt that privately owned puddles are not the business of Washington.

Alas, though, the federal appellate court overturned the trial court. A panel of judges on the Ninth Circuit Court of Appeals was persuaded by the Corps of Engineers that the Constitution does indeed give to federal agencies the power to regulate private use of puddles.

The precise doctrine relied upon by the Army Corps--and accepted by the appellate court--was the so-called "migratory-bird rule." Under this rule (hatched in 1986 by the Army Corps), all waters that might be used as habitat by migratory birds are declared to be waters of the United States and, hence, subject to federal jurisdiction.

The Army Corps insisted that because Leslie Salt's basins occasionally fill with rain water, and migratory birds from time to time take refuge in these basins, these basins are subject to federal government jurisdiction.

ever mind that these basins wouldn't exist had Leslie Salt not dug them. Never mind that the actions of Leslie Salt that stirred the ire of the Army Corps were designed to keep the basins wetter rather than drier. And never mind that the rights of private-property owners are destroyed for the sake of birds. What is really annoying about this case is that it so plainly mocks the Constitution.

The Constitution gives Washington power to regulate only commerce among the states and with foreign nations. The federal government emphatically has no constitutional authority to regulate intrastate commerce. But the Feds long ago grew disdainful of constitutional limits on their domination. So, to allow the court to pretend that it is a law-abiding entity, the government claims that even the tiniest event occurring locally exerts some potential effect on interstate commerce.

It is, after all, possible that Jerry the Barber in Auburn, Alabama, purchases his scissors from Georgia. This possibility allows the federal government, if it wishes, to regulate barbering in small-town USA. Courts typically play along with this charade. Therefore, there are no real limits on the federal government's power under the Commerce Clause.

The reduction ad absurdum of this everything-is-interstate-commerce reasoning is the migratory-bird rule. Birds migrating to and fro conduct no commerce; hence, property owners who alter their puddles affect no commerce. And yet, courts find nothing objectionable about a federal agency using the migratory-bird rule as a means of gaining federal jurisdiction under the Commerce Clause to regulate what property owners do to their puddles. Apparently, the rule now is that the federal government can regulate whatever it wants, wherever it wants, regardless of the Constitution.

Just last April, the Supreme Court created a sliver of hope for those who wish to reduce Washington's role in local affairs. In its surprise decision in United States vs. Lopez, the Supreme Court ruled that a federal statute banning handguns near schools unconstitutionally violates the Commerce Clause.

Sadly, Lopez was a fluke. When the Leslie Salt decision was appealed to the Supreme Court in October, the court refused to hear the appeal. In a spirited dissent from the Court's refusal, Justice Clarence Thomas points out that the migratory-bird rule not only is inconsistent with Lopez, but that this rule stretches "Commerce Clause power beyond the breaking point."

Except for the two or possibly three Justices who hold this view, the Supreme Court's Commerce Clause jurisprudence is for the birds.

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Donald J. Boudreaux, a former Mises Institute student, teaches economics at Clemson University

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