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Case No. 12-16172
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF TOMSTONE;
Plaintiff/Appellee,
vs.
UNITED STATES OF AMERICA; U.S. DEPARTMENT OF
AGRICULTURE; TOM VILSAK(in his official capacity); TOM
TIDWELL (in his official capacity); CORBIN NEWMAN (in his official
capacity);
Defendant/Appellant.
BRIEF OF AMICUS CURIAE CITIZENS FOR BALANCED USE
IN SUPPORT OF APPELLEE
On Appeal from the United States District Court
For the State of Arizona
(Case No. 4:11-CV-00845, Hon. Frank Zapata, presiding)
Nicholas C. Dranias
Christina Sandefur
GOLDWATER INSTUTUTE
Scharf-Norton Ctr for Const. Gov’t
500 E. Coronado Road
Phoenix, Arizona 85004
Telephone: (602) 462-5000
For Appellee
Quentin M. Rhoades, Esq.
SULLIVAN, TABARACCI & RHOADES, P.C.
1821 South Avenue West, 3rd Fl.
Missoula, Montana 59801
Telephone: (406) 721-9700
For Amicus Curiae
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TABLE OF CONTENTS
INTEREST AND IDENTITY OF AMICUS CURIAE . . . . . . . . . . . . . . . 1
RULE 29(c)(5) STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.
The Property Clause does not arm Congress with sweeping
regulatory powers not otherwise granted to it elsewhere in the
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.
The sole source of potential authority for Congress to interfere
with Tombstone’s long established water rights is given under
the Interstate Commerce Clause . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.
The Interstate Commerce Clause, as currently construed, robs
the States of all independent power . . . . . . . . . . . . . . . . . . . . . . . . 9
4.
The plenary-power case law should be overturned because
powerless and dependent States cannot fulfil their intended
functions as bulwarks against tyranny . . . . . . . . . . . . . . . . . . . . 16
A.
Stare decisis is not an end in itself . . . . . . . . . . . . . . . . . . . 16
B.
In view of the Tenth Amendment, the Interstate Commerce
Clause should be construed to preserve State sovereignty 17
i.
Federalism should be restored as a bulwark of liberty17
ii.
The Tenth Amendment should control construction of
the Congress’s enumerated powers . . . . . . . . . . . . . . 18
iii.
The plenary-power case law should be overturned
because it indirectly undermines the separation of
powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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The intermediate scrutiny test should be adopted for Tenth
Amendment review, which test the Forest Service’s position
fails . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A.
Intermediate review would give effect to the changes to the
original Constitution adopted under the later adopted Tenth
Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B.
The Forest Service’s prohibition fails intermediate
scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE
REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
CERTIFICATE THAT DISKETTE HAS BEEN SCANNED AND IS
VIRUS-FREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CERTIFICATE FOR BRIEF IN PAPER FORMAT . . . . . . . . . . . . . . . . 38
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TABLE OF AUTHORITIES
Federal Case Authorities
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) 10
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) . . . . . . 23
Application of Griffiths, 413 U.S. 717 (1973) . . . . . . . . . . . . . . . . . . . . 29
Bond v. U.S., ___ U.S. ___, 131 S. Ct. 2355 (2011) . . . . . . . . . . . . . 8, 17
Carter v. Carter Coal Co., 298 U.S. 238 (1936) . . . . . . . . . . . . . . . . . . 10
Citizens United v. Federal Election Commission,
___ U.S. ___, 130 S.Ct. 876 (2010) . . . . . . . . . . . . . . . . . . . . 15, 16
Clark v. Jeter, 486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Coleman v. Thompson, 501 U.S. 722 (1991) . . . . . . . . . . . . . . . . . . . . . . 4
Colautti v. Franklin, 439 U.S. 379 (1979)
. . . . . . . . . . . . . . . . . . . . . 18
Corley v. United States, 556 U.S. 303 (2009) . . . . . . . . . . . . . . . . . . . 18
Dist. of Columbia v. Hutton, 143 U.S. 18 (1892) . . . . . . . . . . . . . . . . 19
Dist. of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . 18, 28
Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) . . . . . . . . . . . . . 29
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) 15, 21
Gonzales v. Raich, 545 U.S. 1 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . 22, 26
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Griswold v. Connecticut, 381 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . 20
Hammer v. Dagenhart, 247 U.S. 251 (1918) . . . . . . . . . . . . . . . . . . . . . 11
Heisler v. Thomas Colliery Co., 260 U.S. 245 (1922) . . . . . . . . . . 10, 11
Helvering v. Hallock, 309 U.S. 106 (1940) . . . . . . . . . . . . . . . . . . . . . . 16
Hibbs v. Dep't of Human Res., 273 F.3d 844, 855 (9th Cir. 2001)
aff'd sub S. Ct. 1972, 155 L. Ed. 2d 953 (2003) . . . . . . . . . . . . . . 30
Hill v. Wallace, 259 U.S. 44 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Howard v. Illinois Central R. Co., 207 U.S. 463 (1907) . . . . . . . . . . . . . 11
Kleppe v. New Mexico, 426 U.S. 529 (1988) . . . . . . . . . . . . . . . . . . . . . . 5
Lane County v. Oregon, 7 Wall. 71 (1869) . . . . . . . . . . . . . . . . . . . . . . . 22
Marbury v. Madison, 1 Cranch 137, 174, 2 L.Ed. 60 (1803) . . . . . 18, 27
M'Cullough v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819) . 2, 5, 7, 31
Minor v. Happersett, 88 U.S. 162 (1874) . . . . . . . . . . . . . . . . . . . . . . 19
Myers v. United States, 272 U.S. 52 (1926) . . . . . . . . . . . . . . . . . . . . . 18
New York v. United States, 505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . 4
Planned Parenthood of Se. Pennsylvania v. Casey,
505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935) . . . . 10
Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) . . . . . . . . . . . . 19
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San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct.
1278, 36 L.Ed.2d 16 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 28
San Luis & Delta-Mendota Water Auth. v. Salazar,
638 F.3d 1163, 1177 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . 12, 14
Schechter Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 7
9 L.Ed. 1570 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646 (9th Cir. 2002) . . 30
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . 16
Sossamon v. Texas, ___ U.S. ___, 131 S. Ct. 1651, 1657 (2011) . . . . . . 8
Tafflin v. Levitt, 493 U.S. 455 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Texas v. White, 74 U.S. 700 (1868) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 22
Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180 (1997) . . . . . . . . . . . . 29
United States v. Alderman, 565 F.3d 641 (9th Cir. 2009), rehearing
and rehearing en banc 593 F.3d 1141 (9th Cir. 2010) . . . . . . . 13
U.S v. Alderman, 593 F.3d 1141 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . 14
United States v. Butler, 297 U.S. 1 (1936) . . . . . . . . . . . . . . . . . . . . . . 10
United States v. City & County of San Francisco, 310 U.S.
16 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 30
United States v. Darby, 312 U.S. 100 (1941) . . . . . . . . . . . . . . . . . . . . 11
United States v. Dewitt, 9 Wall. 41, 19 L.Ed. 593 (1869) . . . . . . . . . . . 11
United States v. Dorsey, 418 F.3d 1038 (9th Cir. 2005) . . . . . . . . . . . . 15
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United States v. George, 579 F.3d 962 (9th Cir. 2009) . . . . . . . . . . . . . 13
United States v. Jones, 231 F.3d 508 (9th Cir.2000) . . . . . . . . . . . . . . 17
United States v. Lopez, 514 U.S. 549, 575 (1995) . . . . . . . . . . . . . . . . 26
United States v. Marzzarella, 614 F.3d 85 (3rd Cir. 2010) . . . . . . . . . . 31
United States v. Morrison, 529 U.S. 598 (2000) . . . . . . . . . . . . . . . . . . 12
United States v. Steffens, 100 U.S. 82 (1879) . . . . . . . . . . . . . . . . . . . . 11
United States v. Stewart, 348 F.3d 1132, 1135 (9th Cir. 2003) . . . . . 13
United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006) . . . . . . . . . . . 13
United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . . . . . . . . . . . 29
U.S. v. Walker, 490 F.3d 1282 (11th Cir. 2007), cert. denied,
128 S. Ct. 1649, 170 L. Ed. 2d 354 (2008) . . . . . . . . . . . . . . . . . . . 7
United States v. Waybright, 561 F.Supp.2d 1154 (D. Mont. 2008) . . . 13
Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932) . . . . . . . . . . . . . 11
Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1970) . . . . . . 19
Ward v. Rock Against Racism, 491 U.S. 781 (1989) . . . . . . . . . . . . . . . 29
Wickard v. Filburn, 317 U.S. 111 (1942) . . . . . . . . . . . . . . . . . . 11, 12, 14
State Case Authorities
Cook v. City of Delta, 64 P.2d 1257 (Colo. 1937) . . . . . . . . . . . . . . . . . . . 8
Lincoln Federal Labor Union No. 19129 v. Northwestern Iron & Metal
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Co., 149 Neb. 507, 31 N.W.2d 477 (1948), aff'd, 335 U.S. 525, 69 S. Ct.
251, 93 L. Ed. 212, 6 A.L.R.2d 473 (1949) . . . . . . . . . . . . . . . . . . . . . . . . 7
Kelly v. State, 138 S.W.2d 1075 (Tex. 1940) . . . . . . . . . . . . . . . . . . . . . . 8
Robb v. City of Tacoma, 28 P.2d 327 (Wash. 1933) . . . . . . . . . . . . . . . . . 7
U.S. Constitutional Provisions
U.S. Const., art. I, § 8, cl. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const., art I, § 8, cl. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S. Const., art. I, § 3, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S. Const., art. I, § 3, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S. Const., art. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
U.S. Const., amend. XXVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Other Authorities
Black’s Law Dictionary (9th ed. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 19
Robert G. Natelson, Federal Land Retention and the Constitution's
Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327
(2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Federalist Papers (R.A. Ferguson ed. 2006) . . . . . . . . . . . . . . . 10, 22, 24
Forrest McDonald, Novus Ordo Seclorum (1985) . . . . . . . . . . . . . . . . . . 4
Jay D. Wexler, Defending the Middle Way: Intermediate Scrutiny As
Judicial Minimalism, 66 Geo. Wash. L. Rev. 298 (1998). . . . . . . . . . . . 30
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INTEREST AND IDENTITY OF AMICUS CURIAE
Citizens for Balanced Use (“CBU”) is non-profit organization that
espouses multiple use of public lands, and is dedicated to maintaining
access to public lands for everyone. It works toward uniting all users to
keep public lands open, with help from citizens and businesses from
across the state of Montana. At the heart of CBU’s “Multiple Use”
philosophy is the precept of maintaining peaceful co-existence of human
and wildlife in a natural and traditional setting. Conservation,
management of natural resources and recreation, and social health are
the three, main components that its members believe should be given
equal consideration in policy shaping decisions. CBU aims for the
historic balance of people and nature to meet the needs of future
generations. Multiple Use of public lands for the future is a vital
element in public enjoyment and benefit and should be encouraged and
developed with a respect for all users. Careful research and continuing
management will successfully maintain the balance between man and
nature. CBU views itself as a working model of user groups coming
together to figure out how best to manage public forests and preserve
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them for future generations.
CBU’s interest in the this case is to advocate for state’s rights and
constitutional dual sovereignty. All parties have consented to CBU’s
filing of an amicus brief on appeal in this case.
RULE 29(c)(5) STATEMENT
CBU is appearing amicus curiae on the authority of its president
and founder, Kerry White, and approval of its governing board of
trustees. No party’s counsel authored the amicus brief, in whole or in
part. No party’s counsel contributed money to fund preparing or
submitting the brief. No person, other than the amicus curiae, its
members, or its counsel, contributed money that was intended to fund
preparing or submitting the brief.
ARGUMENT
1.
The Property Clause does not arm Congress with
sweeping regulatory powers not otherwise granted to it
elsewhere in the Constitution.
“This government is acknowledged by all to be one of enumerated
powers.” M'Cullough v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819)
(Marshall, C.J.). Of those enumerated powers is the power to own land.
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But that power is not plenary. Rather, the U.S. Constitution recognizes
only three sorts of federal property ownership: (1) “enclaves,” U.S.
Const., art I, § 8, cl. 17; (2) “territory,” U.S. Const., art. I, § 3, cl. 2; and
(3) “other property,” U.S. Const., art. I, § 3, cl. 2. See Robert G.
Natelson, Federal Land Retention and the Constitution's Property
Clause: The Original Understanding, 76 U. Colo. L. Rev. 327, 345
(2005).
Federal “enclaves” are provided for in Article I, § 8, cl. 17, which
grants Congress power to obtain land from the States, at their “cession”
or “consent”:
[t]o exercise exclusive Legislation in all Cases whatsoever,
over such District (not exceeding ten Miles square) as may,
by Cession of particular States, and the Acceptance of
Congress, become the Seat of the Government of the United
States, and to exercise like Authority over all Places
purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful
Buildings . . .
(Emphasis added.) Congress has “exclusive” power to regulate these
enclaves obtained from the States, but they are expressly limited in size
for the constitutional purpose of serving dual sovereignty and thereby
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individual liberty:
The Constitution does not protect the sovereignty of States
for the benefit of the States or state governments as abstract
political entities, or even for the benefit of the public officials
governing the States. To the contrary, the Constitution
divides authority between federal and state governments for
the protection of individuals. State sovereignty is not just an
end in itself: “Rather, federalism secures to citizens the
liberties that derive from the diffusion of sovereign power.”
New York v. United States, 505 U.S. 144, 181 (1992) (quoting Coleman
v. Thompson, 501 U.S. 722, 759 (1991)).
Another kind of federal land ownership is allowed under the
“Property Clause.” It allows for ownership of “Territory,” or land lying
outside the boundaries of all states. Forrest McDonald, Novus Ordo
Seclorum, 92 (1985). The management powers within the Property
Clause are different and less sweeping than the “Exclusive” powers
granted under the Enclave Clause. Under the Property Clause,
Congress may “make all needful Rules and Regulations respecting” U.S.
territories. U.S. Const. art. IV, § 3, cl. 2 (emphasis added).1 The final
1
U.S. Const. art. IV, § 3, cl. 2 reads: “The Congress shall have
Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United
States; and nothing in this Constitution shall be so construed as to
Prejudice any Claims of the United States, or of any particular State.”).
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type of enumerated federal property ownership is that of the kind at
issue in this case, which the Constitution refers to as “other property.”
As with Territories, Congress is given the power to undertake only
“needful” regulations to manage “other” federal property. Id.
“Needful” management of “other property,” however, does not
contemplate the regulation of States with powers broader than those
otherwise enumerated by the U.S. Constitution. “The power to ‘make all
needful rules and regulations respecting the territory or other property
belonging to the United States,’ is not more comprehensive than the
power ‘to make all laws which shall be necessary and proper for
carrying into execution’ the powers of the government.” M'Cullough v.
Maryland, 17 U.S. (4 Wheat) 316, 422 (1819) (Marshall, C.J.) (emphasis
added). It is acknowledged that the case of Kleppe v. New Mexico, 426
U.S. 529, 549 (1988) would seem to stand for a different proposition.
“And while the furthest reaches of the power granted by the Property
Clause have not yet been definitively resolved, we have repeatedly
observed that ‘(t)he power over the public land thus entrusted to
Congress is without limitations.’” Id. But the Kleppe decision does not
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discuss the implications of the word “needful” in its analysis. More
important, if the Constitution is one only of enumerated powers, it is
logically impossible for the Property Clause to grant, through the
backdoor, plenary Congressional powers to wield over the States. Thus
the insertion by the Framers, and the effect, of the qualifying clause:
“needful.” Congress cannot “exercise general control over public policy
in a State” under the guise of exercising “the complete power which
Congress has over particular public property entrusted to it.” See
United States v. City & County of San Francisco, 310 U.S. 16, 30 (1940).
Yet, the U.S. Forest Service’s attempt at general control over the
desert town of Tombstone, Arizona, and its absolutely vital water
system, is precisely what the Congress, through a delegation of power to
the administrative agencies of the Executive Branch, seeks to do in this
case. Indeed, if the Forest Service has its way, Tombstone stands in
danger of extinction. But the Constitution enumerates for Congress no
power in the Property Clause to eliminate the municipal water supply
of Tombstone unless that power can be found enumerated elsewhere.
M'Cullough, 17 U.S. (4 Wheat) at 422; City & County of San Francisco,
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310 U.S. at 30.
2.
The sole source of potential authority for Congress to
interfere with Tombstone’s long established water
rights is given under the Interstate Commerce Clause.
Whenever a question arises as to whether the federal government
has the power to exercise any particular authority, courts look to the
Constitution itself, either by express words, Lincoln Federal Labor
Union No. 19129 v. Northwestern Iron & Metal Co., 149 Neb. 507, 31
N.W.2d 477 (1948), aff'd, 335 U.S. 525, 69 S. Ct. 251, 93 L. Ed. 212, 6
A.L.R.2d 473 (1949), or by necessary implication. E.g., Robb v. City of
Tacoma, 28 P.2d 327, 330 (Wash. 1933).
The principles of federalism recognize that the states and the
federal government exist as dual sovereigns, constraining the federal
government from exerting federal power in areas that the Constitution
reserves to the several sovereign States. U.S. v. Walker, 490 F.3d 1282
(11th Cir. 2007), cert. denied, 128 S. Ct. 1649, 170 L. Ed. 2d 354 (2008).
In the dual form of government in the United States, each State has the
right to order its own affairs so far as the Constitution expressly or by
fair implication has not withdrawn that power. Cook v. City of Delta,
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64 P.2d 1257 (Colo. 1937); Kelly v. State, 138 S.W.2d 1075 (Tex. 1940).
As late as last year, the Supreme Court again stated: ““Dual
sovereignty is a defining feature of our Nation’s constitutional
blueprint.” Sossamon v. Texas, ___ U.S. ___, 131 S. Ct. 1651, 1657
(2011) (emphasis added). “Upon ratification of the Constitution, the
States entered the Union ‘with their sovereignty intact.’” Id. Thus,
“[i]mpermissible interference with state sovereignty is not within the
enumerated constitutional powers of the National Government, and
action that exceeds the National Government's enumerated powers
undermines the sovereign interests of States.” Bond v. U.S., ___ U.S.
___, 131 S. Ct. 2355, 2366 (2011) (internal citations omitted).
In this case, no clause of the U.S. Constitution either gives
Congress the power to block Tombstone’s repair of its municipal water
supply, or strips from Tombstone, as a subdivision of the sovereign
State of Arizona, the prerogative to exercise its police powers to protect
the lives and property rights of its own people. The Congressional
authority is listed under Article I, Section 8. The sole candidate is the
Interstate Commerce Clause, which allows to Congress “[t]o regulate
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Commerce ... among the several States.” U.S. Const. Art. I, § 8, cl. 3.
3.
The Interstate Commerce Clause, as currently
construed, robs the States of all independent power.
Prior to the New Deal, the following analysis applied under the
Interstate Commerce Clause:
In determining how far the federal government may go in
controlling intrastate transactions upon the ground that they
“affect” interstate commerce, there is a necessary and
well-established distinction between direct and indirect effects.
The precise line can be drawn only as individual cases arise,
but the distinction is clear in principle. Direct effects are
illustrated by the railroad cases we have cited, as, e.g., the
effect of failure to use prescribed safety appliances on railroads
which are the highways of both interstate and intrastate
commerce, injury to an employee engaged in interstate
transportation by the negligence of an employee engaged in an
intrastate movement, the fixing of rates for intrastate
transportation which unjustly discriminate against interstate
commerce. But where the effect of intrastate transactions
upon interstate commerce is merely indirect, such transactions
remain within the domain of state power. If the commerce
clause were construed to reach all enterprises and
transactions which could be said to have an indirect effect
upon interstate commerce, the federal authority would
embrace practically all the activities of the people, and the
authority of the state over its domestic concerns would exist
only by sufferance of the federal government. Indeed, on such
a theory, even the development of the state’s commercial
facilities would be subject to federal control. As we said in
Simpson v. Shepard (Minnesota Rate Case), 230 U.S. 352, 410,
33 S.Ct. 729, 745, 57 L.Ed. 1511, 48 L.R.A. (N.S.) 1151, Ann.
Cas. 1916A, 18: “In the intimacy of commercial relations, much
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that is done in the superintendence of local matters may have
an indirect bearing upon interstate commerce.
The
development of local resources and the extension of local
facilities may have a very important effect upon communities
less favored, and to an appreciable degree alter the course of
trade. The freedom of local trade may stimulate interstate
commerce, while restrictive measures within the police power
of the state, enacted exclusively with respect to internal
business, as distinguished from interstate traffic, may in their
reflex or indirect influence diminish the latter and reduce the
volume of articles transported into or out of the state.” See,
also, Kidd v. Pearson, 128 U.S. 1, 21, 9 S.Ct. 6, 32 L.Ed. 346;
Heisler v. Thomas Colliery Co., 260 U.S. 245, 259, 260, 43 S.Ct.
83, 67 L.Ed. 237.
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 546-47
(1935) (emphasis added); see also Carter v. Carter Coal Co., 298 U.S.
238, 291 (1936); United States v. Butler, 297 U.S. 1, 62-63 (1936).
Thus, for the first 150 years of American Constitutional history, the
States enjoyed a robust independence with which they could serve their
federalist purpose, in the Framers’ carefully crafted balance of powers,
of preserving individual liberty.2
E.g., Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855,
80 L.Ed. 1160 (1936); Railroad Retirement Board v. Alton R. Co., 295
U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468 (1935); Schechter Corp. v. United
States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Utah Power &
Light Co. v. Pfost, 286 U.S. 165, 52 S.Ct. 548, 76 L.Ed. 1038 (1932);
Oliver Iron Co. v. Lord, 262 U.S. 172, 178, 179, 43 S.Ct. 526, 529, 67
L.Ed. 929 (1923); Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed.
2
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Then came the New Deal and cases like United States v. Darby,
312 U.S. 100, 114-115 (1941) and Wickard v. Filburn, 317 U.S. 111,
128-129 (1942). See Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162
L. Ed. 2d 1 (2005). Since the announcement of Darby and Wickard, a
rule giving Congress plenary power has been allowed by the courts to
prevail:
Our case law firmly establishes Congress’ power to regulate
purely local activities that are part of an economic “class of
activities” that have a substantial effect on interstate
commerce. ... As we stated in Wickard, “even if appellee’s
activity be local and though it may not be regarded as
commerce, it may still, whatever its nature, be reached by
Congress if it exerts a substantial economic effect on interstate
commerce.” Id., at 125, 63 S.Ct. 82. We have never required
Congress to legislate with scientific exactitude.
When
Congress decides that the “total incidence” of a practice poses
a threat to a national market, it may regulate the entire class.
... In this vein, we have reiterated that when “a general
regulatory statute bears a substantial relation to commerce,
the de minimis character of individual instances arising under
that statute is of no consequence.”
Raich, 545 U.S. at 17 (emphasis added). Thus, as this Court recently
822 (1922); Heisler v. Thomas Colliery Co., 260 U.S. 245, 259, 260, 43
S.Ct. 83, 86, 67 L.Ed. 237 (1922); Hammer v. Dagenhart, 247 U.S. 251,
38 S.Ct. 529, 62 L.Ed. 1101 (1918); Howard v. Illinois Central R. Co.,
207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297 (1907); United States v.
Steffens, 100 U.S. 82, 25 L.Ed. 550 (1879). Cf. United States v. Dewitt,
9 Wall. 41, 19 L.Ed. 593 (1869).
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again held, Congress has full power to legislate ,under the guise of
regulating “Interstate Commerce,” activity that is neither interstate nor
commercial. San Luis & Delta-Mendota Water Auth. v. Salazar, 638
F.3d 1163, 1177 (9th Cir. 2011).
As a result, despite the jurisprudence for the first century and a
half of the Republic, federal courts now view the Interstate Commerce
power as “plenary, unsusceptible to categorical exclusions.” United
States v. Morrison, 529 U.S. 598, 640 (2000) (Souter J., dissenting). The
plenary-power view has held sway “throughout the latter part of the
20th Century in the substantial effects test.” Id. The Supreme Court
confirmed the 20th Century case law in 2005, holding that: “Congress
can regulate purely intrastate activity that is not itself ‘commercial.’”
Gonzales v. Raich, 545 U.S. 1, 18, 125 S. Ct. 2195, 2206, 162 L. Ed. 2d 1
(2005) (emphasis added) (citing Wickard v. Filburn, 317 U.S. 111,
128-129, 63 S.Ct. 82, 87 L.Ed. 122 (1942)). “Our case law firmly
establishes Congress’ power to regulate purely local activities that are
part of an economic ‘class of activities’ that have a substantial effect on
interstate commerce.” Id., at 17, 125 S. Ct. at 2205 (emphasis added).
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As a result, “little may be left to the notion of enumerated powers.”
Raich, 545 U.S. at 47, 125 S. Ct. at 2223 (O’Conner, J., joinied by
Rhenquist, C.J., and Thomas, J., dissenting.) Indeed, as Justice
Thomas’s Raich dissent stated more pointedly, under the Court’s
plenary-power construction of the Interstate Commerce Clause, “the
Federal Government is no longer one of limited and enumerated
powers.” Id., at 58, 125 S. Ct. at 2229.
Under current Ninth Circuit case law, “everything is subject to
federal regulation under the Commerce Clause.” United States v.
Stewart, 348 F.3d 1132, 1135 (9th Cir. 2003), abrogated United States
v. Stewart, 451 F.3d 1071 (9th Cir. 2006) (emphasis added). This is
true regardless of an activity’s lack of any “commercial” element.
United States v. George, 579 F.3d 962, 966 (9th Cir. 2009)
(disapproving United States v. Waybright, 561 F.Supp.2d 1154 (D.
Mont. 2008)); United States v. Alderman, 565 F.3d 641 (9th Cir. 2009),
rehearing and rehearing en banc 593 F.3d 1141 (9th Cir. 2010).
Congress enjoys all power in any context “to displace state legislatures
with the full weight of the federal government, a result as undesirable
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as it is unconstitutional.” U.S v. Alderman, 593 F.3d 1141, 1142 (9th
Cir. 2010) (O’Scannlain, Circuit Judge, dissenting from the order
denying rehearing en banc), cert. den., 131 S. Ct. 700, 178 L. Ed. 2d 799
(2011).
A very recent instance of how the Interstate Commmerce Clause
jurisprudence accord Congress plenary power is San Luis &
Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1177 (9th Cir.
2011):
The Supreme Court has never required that a statute be a
“comprehensive economic regulatory scheme” or a
“comprehensive regulatory scheme for economic activity” in
order to pass muster under the Commerce Clause. Indeed, it
has never used those terms. The only requirement “which was
expressly detailed in Raich” is that the “comprehensive
regulatory scheme” have a “substantial relation to commerce.”
See Raich, 545 U.S. at 17, 125 S.Ct. 2195. The statute need not
be a purely economic or commercial statute, as [the appellants]
would have us believe.
638 F.3d at 1177. “In sum, Congress has the power to regulate purely
intrastate activity as long as the activity is being regulated under a
general regulatory scheme that bears a substantial relationship to
interstate commerce.” Id., at 175 (emphasis added). Thus,“jury-rigging
of new and different justifications” is required to shore-up Wickard v.
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Filburn and its plenary-power progeny. See Citizens United v. Federal
Election Commission, ___ U.S. ___, ___, 130 S.Ct. 876, 920-21 (2010)
(Roberts, C.J., concurring).
The analysis of Delta-Mendoza Water Auth. v. Salazar,, if it were
to remain valid, would likely govern the U.S. Forest Service’s veto of
Tombstone’s effort to repair its precious water supply. The profound
flexibility of the current rules allows the Interstate Commerce Clause to
be shaped, flaked and molded to serve any Congressional rationale. See
United States v. Dorsey, 418 F.3d 1038, 1046 (9th Cir. 2005). Congress
now enjoys an unfettered plenary power, which, under the Supremacy
Clause, Art. IV, § 2, U.S. Const., leaves the States helplessly impotent
should they find themselves at odds with the United States Congress.
“[T]he States as States retain no status apart from that which Congress
chooses to let them retain.” Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528, 588, 105 S. Ct. 1005, 1037, 83 L. Ed. 2d 1016 (1985)
(O’Connor, J., dissenting). As a result, the American form of
government, as a practical matter, appears no longer to include the
concept of dual sovereignty.
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4.
The plenary-power case law should be overturned
because powerless and dependent States cannot fulfil
their intended functions as bulwarks against tyranny.
A.
Stare decisis is not an end in itself.
If case law were sacrosanct, of course, this discussion would be
absurd. Fortunately, however, “stare decisis is a principle of policy and
not a mechanical formula of adherence to the latest decision.” Helvering
v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 84 L.Ed. 604 (1940). Case
law can and should be overturned if it supports an erroneous
proposition of law, especially in the Constitutional arena “because in
such cases ‘correction through legislative action is practically
impossible.’” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 63, 116
S. Ct. 1114, 1127, 134 L. Ed. 2d 252 (1996). It is one of the great
strengths of our system that courts can correct their mistakes:
[W]e must keep in mind that stare decisis is not an end in
itself. ... Its greatest purpose is to serve a constitutional ideal
– the rule of law. It follows that in the unusual circumstance
when fidelity to any particular precedent does more to damage
this constitutional ideal than to advance it, we must be more
willing to depart from that precedent.
Citizens United, 130 S.Ct. at 920-21 (Roberts, C.J., concurring,
emphasis added).
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B.
In view of the Tenth Amendment, the Interstate Commerce
Clause should be construed to preserve State sovereignty.
i.
Federalism should be restored as a bulwark of liberty.
The Tenth Amendment should not be construed, as has been so
often the case in the past, as tautalogical surplusage. E.g., United
States v. Jones, 231 F.3d 508, 515 (9th Cir.2000). The Tenth
Amendment, likewise, is no mere tautology. Any doubt about that was
dispelled once-and-for-all when the U.S. Supreme Court recently
decided Bond, supra, 131 S. Ct. 2355 (2011). Authored by Justice
Kennedy for a unanimous court, the decisions’s emphatic analysis reads
like an amicus brief in support of this very appeal. As the Court
instructed:
The federal system rests on what might at first seem a
counterintuitive insight, that “freedom is enhanced by the
creation of two governments, not one.” Alden v. Maine, 527
U.S. 706, 758, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). The
Framers concluded that allocation of powers between the
National Government and the States enhances freedom, first
by protecting the integrity of the governments themselves, and
second by protecting the people, from whom all governmental
powers are derived.
Bond, 131 S. Ct. at 2364-65. As the Bond decision makes clear, it is
time for the Tenth Amendment to be restored to its rightful place at the
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forefront of Constitutional jurisprudence. Federalism can – and should
again – serve as a key pillar of the American form of government.
ii.
The Tenth Amendment should control construction of the
Congress’s enumerated powers.
One of the most basic canons of interpretation is “that ‘a statute
should be construed so that effect is given to all its provisions, so that
no part will be inoperative or superfluous, void or insignificant....’”
Corley v. United States, 556 U.S. 303, 129 S. Ct. 1558, 1566, 173 L. Ed.
2d 443 (2009); Colautti v. Franklin, 439 U.S. 379, 392 (1979). The same
goes for Constitutional provisions. “It cannot be presumed that any
clause in the constitution is intended to be without effect; and,
therefore, such a construction is inadmissible, unless the words require
it.” Marbury v. Madison, 1 Cranch 137, 174, 2 L.Ed. 60 (1803). In other
words, “what is not debatable is that it is not the role of this Court to
pronounce the [Tenth] Amendment extinct.” Dist. of Columbia v.
Heller, 554 U.S. 570, 636 (2008). Thus, in interpreting the
Constitution, “real effect should be given to all the words it uses.” Myers
v. United States, 272 U.S. 52, 151 (1926).
At the same time, it is also unavoidable that if there is a conflict
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between or among provisions of a coequal body of law, the most
recently-enacted controls. Radzanower v. Touche Ross & Co., 426 U.S.
148, 166, n. 3 (1976).
When there are two acts on the same subject, the rule is to give
effect to both if possible. But, if the two are repugnant in any
of their provisions, the latter act, without any repealing clause,
operates to the extent of the repugnancy as a repeal of the first;
and even where two acts are not in express terms repugnant,
yet if the latter act covers the whole subject of the first, and
embraces new provisions, plainly showing that it was intended
as a substitute for the first act, it will operate as a repeal of
that act.
Dist. of Columbia v. Hutton, 143 U.S. 18, 26-27 (1892). Finally,
“amendment” means,“specifically, change.” Black’s Law Dictionary (9th
ed. 2009). Thus, whatever the original meaning and intent of Article I
of the U.S. Constitution, which enumerates Congressional powers, that
meaning is subject to – changed by – any later amendments.
In this case, the U.S. Constitution was fully ratified in 1790.
Minor v. Happersett, 88 U.S. 162, 176 (1874). The Tenth Amendment,
along with the other provisions of the Bill of Rights, was ratified in
1791. Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 682
(1970). Enacted most recently, then, the first ten Amendments control
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application and construction of Article I, including the Interstate
Commerce Clause, of the U.S. Constitution. As Justice Goldberg wrote
of the Ninth Amendment in his concurring opinion in Griswold v.
Connecticut:
The Ninth Amendment to the Constitution may be regarded by
some as a recent discovery and may be forgotten by others, but
since 1791 it has been a basic part of the Constitution which
we are sworn to uphold. To hold that a right so basic and
fundamental and so deeprooted in our society as the right of
privacy in marriage may be infringed because that right is not
guaranteed in so many words by the first eight amendments to
the Constitution is to ignore the Ninth Amendment and to give
it no effect whatsoever. Moreover, a judicial construction that
this fundamental right is not protected by the Constitution
because it is not mentioned in explicit terms by one of the first
eight amendments or elsewhere in the Constitution would
violate the Ninth Amendment, which specifically states that
“(t)he enumeration in the Constitution, of certain rights shall
not be construed to deny or disparage others retained by the
people.” (Emphasis added.)
Griswold v. Connecticut, 381 U.S. 479, 490-92 (1965). The Tenth
Amendment, like the Ninth, is therefore something far beyond
tautology.
The Interstate Commerce Clause jurisprudence should be set back
on the course it pursued until it was untracked in 1940. By regulating
any purely non-commercial, intrastate matter case law wreaks havoc
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upon the “constitutional ideal” of federalism. The 20th Century case
law has simply overturned dual sovereignty. See e.g., Garcia, 469 U.S.
at 583-584 (O’Connor, J., dissenting). This effective repeal of a vertical
balance of powers, as originally conceived for the American form of
government, should be reconsidered and, to the extent the cases allow
the U.S. Forest Service to interfere with Tombstone’s municipal water
supply, overruled.
In thinking about this question, and about whether stare decisis
should give-way to the restoration of federalism, the Court is urged to
consider the magnitude and effect of the Constitutional error. The
Framers’ original system of dual sovereignty was intended as a careful
balance of power between the States and the national government. At
one time it was considered axiomatic that “under our federal system,
the States possess sovereignty concurrent with that of the Federal
Government, subject only to limitations imposed by the Supremacy
Clause.” Tafflin v. Levitt, 493 U.S. 455 (1990). Indeed, without real
and robust power residing in the States, there can be, by definition, no
federalism:
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“[T]he people of each State compose a State, having its own
government, and endowed with all the functions essential to
separate and independent existence,”... “[W]ithout the States
in union, there could be no such political body as the United
States.” Not only, therefore, can there be no loss of separate
and independent autonomy to the States, through their union
under the Constitution, but it may be not unreasonably said
that the preservation of the States, and the maintenance of
their governments, are as much within the design and care of
the Constitution as the preservation of the Union and the
maintenance of the National government. The Constitution, in
all its provisions, looks to an indestructible Union, composed of
indestructible States.
Texas v. White, 74 U.S. 700, 19 L. Ed. 227 (1868) (quoting Lane County
v. Oregon, 7 Wall. 71, 76, 19 L.Ed. 101 (1869)).
The Supreme Court has often identified many practical
advantages inherent in dual sovereignty:
This federalist structure of joint sovereigns preserves to the
people numerous advantages. It assures a decentralized
government that will be more sensitive to the diverse needs of
a heterogenous society; it increases opportunity for citizen
involvement in democratic processes; it allows for more
innovation and experimentation in government; and it makes
government more responsive by putting the States in
competition for a mobile citizenry.
Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). “The ‘constitutionally
mandated balance of power’ between the States and the Federal
Government was adopted by the Framers to ensure the protection of
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‘our fundamental liberties.’” Atascadero State Hosp. v. Scanlon, 473
U.S. 234, 242 (1985) (emphasis added).
The principle was once as basic to that American system as is the
separation and independence of this, the Judicial Branch of the federal
government, from its coequal branches. Just as an independent
Judiciary acts as a bulwark in the service of liberty against the
arrogation of excessive power in the Legislative or Executive branches,
a robust power residing in the States once served equally as an
essential shield against government abuse. Alexander Hamilton said
the federal system was designed to suppress “the attempts of the
government to establish a tyranny:”
[A] confederacy of the people, without exaggeration, may be
said to be entirely the masters of their own fate. Power being
almost always the rival of power, the general government will
at all times stand ready to check the usurpations of the state
governments, and these will have the same disposition
towards the general government. The people, by throwing
themselves into either scale, will infallibly make it
preponderate. If their rights are invaded by either, they can
make use of the other as the instrument of redress.
Federalist Papers, No. 28, p. 152 (R.A. Ferguson ed. 2006) (emphasis
added). James Madison agreed:
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In the compound republic of America, the power surrendered
by the people is first divided between two distinct
governments, and then the portion allotted to each subdivided
among distinct and separate departments. Hence a double
security arises to the rights of the people. The different
governments will control each other, at the same time that
each will be controlled by itself.
Id., No. 51, p. 290 (emphasis added).
But “[t]hese twin powers will act as mutual restraints only if both
are credible.” Aschcroft, 501 U.S. at 459. The power of the States must
be restored to ensure “tension between federal and state power,” and for
each “distinct government” to fulfil their respective Constitutional roles.
Consequently, the plenary-power case law should be reconsidered, and
where necessary to restore credible power in the States, overruled.
iii.
The plenary-power case law should be overruled because it
indirectly undermines the separation of powers.
There is a second destructive result from the judiciary’s
willingness to change our form of government by fiat. The
unconstitutional approach undermines the people’s faith in their courts.
“Thus, the Court’s legitimacy depends on making legally principled
decisions under circumstances in which their principled character is
sufficiently plausible to be accepted by the Nation.” Planned Parenthood
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of Se. Pennsylvania v. Casey, 505 U.S. 833, 866 (1992). This too is a
pillar of federalism. In the long run, if trust is lost in the courts,
judicial authority will be diminished as the people become less willing
to accept and live by the courts’ decisions. Id. Thus, the judiciary’s
willingness to amend our form of government by decree – as in Wickard
and Darby – erodes the horizontal federalism embodied in the
separation of powers too, and ultimately the indispensable protections
to individual freedom and the rule of law offered so singularly by the
courts.
Granted, there are established academic principles that favor
concentrating all economic power in Washington D.C., where officials
can tinker with fiscal dials and monetary levers to keep the national
economic engine humming. But that is not what the Framer’s had in
mind. More important, if those modern economic ideas are believed by
the people to be beneficial, the Framers built into the Constitution
specific, express mechanisms by which they could choose to amend the
organic law if they wish to arm the central government with additional
power. Art. V, U.S. Const.; see Amend. I-XXVII, U.S. Const.
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The Framer’s federal form of government, with robust and
independent powers resting with all the various governmental branches
– both vertical and horizontal – is well worth any theoretical cost to
macroeconomic efficiency. Indeed, federalism is recognized as “the
unique contribution of the Framers to political science and political
theory.” United States v. Lopez, 514 U.S. 549, 575, 115 S. Ct. 1624,
1638, 131 L. Ed. 2d 626 (1995) (Kennedy, J. concurring). Individual
freedom and the rule of law are served when different branches of
government can compete for the people’s allegiance, and if need be,
intercede against branches that might abuse their power. Gregory, 501
U.S. at 459, 111 S. Ct. at 2400. A balance of powers requires the
various constituencies to compromise, and it guards against their
trampling on one another’s Constitutional rights to freedom, due
process and property. Whatever benefit we might gain by centralizing
all power in the hands of a comparative few public servants in
Washington, it is not worth the cost.
But even if the people ultimately disagree with the form of
government designed by the Framers, the decision to change the form
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is properly left with the people – and the express provisions within the
Constitution allowing for its amendment – which they have
accomplished many times. See Art. V, and Amend. XXVII, U.S. Const.
It should not be undertaken by the federal judiciary, the branch of
government least accountable to the people, by jury-rigging the
Interstate Commerce Clause so it will fit over all human activities.
5.
The intermediate scrutiny test should be adopted for
Tenth Amendment review, which test the Forest
Service’s position fails.
A.
Intermediate review would give effect to the changes to the
original Constitution adopted under the later adopted 10th
Amendment.
Revisiting the case law will have the benefit of honoring the Tenth
Amendment. Chief Justice Marshall once observed: ““It cannot be
presumed that any clause in the constitution is intended to be without
effect.” Marbury, 5 U.S. (1 Cranch) at 174. Similarly, it was recently
said that “what is not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.” Dist. of Columbia v. Heller,
554 U.S. 570, 636, 128 S. Ct. 2783, 2822, 171 L. Ed. 2d 637 (2008)
(Scalia, J.). The current approach of Interstate Commerce Clause
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jurisprudence, however, reduces the 10th Amendment to surplusage.
Congressional action under the Interstate Commerce Clause is
reviewed generally only under a “rational basis test.” San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278,
1288, 36 L.Ed.2d 16 (1973). If the Tenth Amendment is given meaning,
courts should take care to use a narrower lense and, if they find more
than one reasonable interpretation for the limits of an enumerated
power, they should adopt the construction that is more respectful of the
States’ sovereignty. In light of the importance of federalism for ordered
liberty, at the very least, courts should review any Congressional action
which may undermine federalism on something less permissive than a
rational basis analysis. One reasonable option is intermediate scrutiny.
Intermediate scrutiny is a level of review somewhere between
strict scrutiny and rationality review. The Supreme Court has used
intermediate scrutiny in the contexts of the Equal Protection Clause
and the First Amendment. In the Equal Protection context, the Court
has applied intermediate scrutiny to, for example, to laws that
discriminate on the basis of sex, in United States v. Virginia, 518 U.S.
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515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996); and discrimination
against aliens, Application of Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37
L. Ed. 2d 910 (1973). In First Amendment cases, the Court has applied
intermediate scrutiny to content-neutral regulations, Turner Broad.
Sys., Inc. v. F.C.C., 520 U.S. 180, 117 S. Ct. 1174, 137 L. Ed. 2d 369
(1997); time, place, and manner regulations, Ward v. Rock Against
Racism, 491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989); and
regulations of commercial speech. Florida Bar v. Went For It, Inc., 515
U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995).
“To withstand intermediate scrutiny, a statutory classification
must be substantially related to an important governmental objective.”
Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 1914, 100 L. Ed. 2d
465 (1988). It has been said that “[t]he most striking feature of
intermediate scrutiny is that, unlike strict scrutiny or rationality
review, the tier of scrutiny that the Court decides to apply does not
predetermine the outcome of the case; with intermediate scrutiny,
sometimes the state wins, and sometimes it loses.” Jay D. Wexler,
Defending the Middle Way: Intermediate Scrutiny As Judicial
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Minimalism, 66 Geo. Wash. L. Rev. 298, 318 (1998).
B.
The Forest Service’s prohibition fails intermediate scrutiny.
Under “intermediate scrutiny,” the burden is on the Forest
Service to show that the challenged regulation is constitutional, by
demonstrating that the law is necessary to further an important
governmental interest. Scott v. Pasadena Unified Sch. Dist., 306 F.3d
646, 654 (9th Cir. 2002). This allocation of the burden of proof has the
effect of creating a rebuttable presumption of unconstitutionality
against infringements upon dual sovereignty. Hibbs v. Dep't of Human
Res., 273 F.3d 844, 855 (9th Cir. 2001) aff'd sub S. Ct. 1972, 155 L. Ed.
2d 953 (2003).
In the present case, the Forest Service has never attempted to
show that its efforts to stymie Tombstone in the repair and
reconstruction of its municipal water supply systems serves, let alone is
necessary to further, any important government interest. Rather, the
Forest Service simply invokes the Property Clause as a mantra. But if
the Property Clause does not empower the Congress to undertake any
public policy whatsoever, regardless of the structure and meaning of the
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rest of the Constitution. Rather, the Forest Service must link its actions
to the power entailed in the Interstate Commerce Clause before it can
satisfy intermediate scrutiny. M’Collough, 17 U.S. at 422; City &
County of San Francisco, 310 U.S. at 30. Here, it has not made such a
showing.
Even if it had made such an effort, moreover, it would fail.
Intermediate scrutiny requires the asserted governmental end to be
more than just legitimate; it must be either “significant,” “substantial,”
or “important,” and it requires the fit between the challenged regulation
and the asserted objective be reasonable. United States v. Marzzarella,
614 F.3d 85, 98 (3rd Cir. 2010). Whether or not it is rational for the
Forest Service to impose the burdens, restrictions and costs upon
Tombstone as set forth in this record, it surely is not reasonable.
Furthermore, whatever interest the Forest Service beleives it has in
attempting to desicate the town of Tombstone by interfering with its
repair of its water supply system, it cannot be an significant,
substantial or important one. In this case, it is hard to imagine how the
Forest Services’s position might sustain a rational basis test. Under a
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10th Amendment intermediate scrutiny test, however, it utterly fails.
CONCLUSION
Accordingly, as amicus curiae, CBU urges the Court to reverse the
District Court, and impose an injunction against the Appellees as
requested by the Town of Tombstone.
Dated this ____ day of June, 2012.
Respectfully Submitted,
SULLIVAN, TABARACCI & RHOADES, P.C.
By: /s/ Quentin M. Rhoades
Quentin M. Rhoades
For the Amicus Currie
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CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS,
AND TYPE STYLE REQUIREMENTS
1.
This brief complies with the type-volume limitation of FED.
R. APP. P. 32(a)(7)(B) because, according to the word count function of
WordPerfect X3, this brief contains 6,602 words, excluding the parts of
the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of FED. R.
APP. P. 32(a)(5) and the type style requirements of FED. R. APP. P.
32(a)(6) because this brief is prepared in a proportionally spaced
typeface using WordPerfect X3 Century Font type and a14 point font
size.
Dated this 18th day of June, 2012.
Respectfully Submitted,
SULLIVAN, TABARACCI & RHOADES, P.C.
By:
/s/ QuentinM. Rhoades
Quentin M. Rhoades
For the Amicus Curiae Citizens for
Balanced Use
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CERTIFICATE THAT DISKETTE HAS BEEN SCANNED AND IS
VIRUS-FREE
1.
The diskette enclosed herewith complies with the Federal
Rules of Appellate Procedure and the Eighth Circuit Local Rules,
because Appellant’s Principal Brief was published to a pdf document so
that it is searchable; and
2.
The diskette submitted to the court is virus-free.
Dated this 18th day of June, 2012.
Respectfully Submitted,
SULLIVAN, TABARACCI & RHOADES, P.C.
By:
/s/ QuentinM. Rhoades
Quentin M. Rhoades
For the Amicus Curiae Citizens for
Balanced Use
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CERTIFICATE OF SERVICE
This is to verify that on this ____ day of June, 2012, a copy of the
foregoing was duly served on the following persons by the following
means:
__1___
______
__ ___
______
______
______
______
______
CM/ECF
Hand Delivery
Mail
Overnight Delivery Service
Certified Return Receipt Requested Mail
Registered Mail
Fax
E-Mail
1.
David C. Shilton
Appellate Section
Environment & Natural Resources Division,
U.S. Det. Of Justice
P.O. Box 7415
Washington, D.C. 20044
David.Shilton@usdoj.gov
1.
Charles A. Davis
Assistant U.S. Attorney
Arizona State Bar No. 014386
405 W. Congress, Suite 4800
Tucson, Arizona 85701-5040
charles.davis2@usdoj.gov
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1.
Joanna K. Brinkman
U.S. Dept. Of Justice - Environment Enforcement Section
P.O. Box 7611 Ben Franklin Station
Washington, DC 20044-7611
joanna.brinkman@usdoj.gov
1.
Paul Randall Bays
BAYS LAW FIRM, P.C.
100 S. 7th Street
Sierra Vista, AZ 85635
Email: rbays@bayslaw.com
1.
Casandra Casaaus Currie
USDA Office of General Counsel
P.O. Box 586
Albuquergue, NM 87103
Email: Cassandra.currie@usda.gov
1.
Richard Goeken
Smith Currie & Hancock LLP
1025 Connecticut Ave., NW
Washington, DC 20036
Email: rwgoeken@smithcurrie.com
1.
Mark R. Haag
DOJ - U.S. DEPARTMENT OF JUSTICE
Environment & Natural Resources Division
P.O. Box 7415
Washington, DC 20044
Email: mark.haag@usdoj.gov
1.
Robert Fred Palmquist I
STRICKLAND & STRICKLAND
4400 East Broadway
Tucson, AZ 85711-3517
Email: Rpalmquist@stricklandlaw.net
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1.
Christina Sandefur
Goldwater Institute
500 E. Coronado
Phoenix, AZ 85004
Email: csandefur@goldwaterinstitute.org
1.
Nicholas Constantine Dranias
Scharf-Norton Center for Constitutional Litigation
Goldwater Institute
500 E. Coronado Rd.
Phoenix, AZ 85004
Email: ndranias@goldwaterinstitute.org
/s/ QuentinM. Rhoades
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CERTIFICATE FOR BRIEF IN PAPER FORMAT
9th Circuit Case Number: 12-16172
I, Quentin M. Rhoades, certify that this _________ is identical in
content to the version submitted electronically on June 18, 2012. The
paper copies have been printed from the PDF version of the brief
created from the word processing application.
/s/ Quentin M. Rhoades
Quentin M. Rhoades
38