The Fowl Case Against HCR

| Mon Apr. 12, 2010 12:55 PM EDT

Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers is a nice little case about abandoned gravel pits, migratory birds, and the true meaning of the words "navigable waters." In a 5-4 decision in 2001, the U.S. Supreme Court ruled that the Clean Water Act did not apply to man-made intrastate ponds (and their interstate migratory bird populations), and that Chicago-area towns could create a landfill on private property containing isolated bodies of stagnant water. Tough luck for environmental activists (not to mention the geese), but not exactly a landmark decision, either.

There the case rested, like the Ring of Power in the river Anduin, until late last month. That's when former Rep. Tom Campbell, the front-runner in the California GOP primary to take on Sen. Barbara Boxer, unveiled his constitutional argument against health care reform. In a blog post on his campaign site, Campbell suggests that the Supreme Court will use Solid Waste's narrow reading of the Commerce Clause to strike down the individual mandate:

In 2001, the U.S. Supreme Court struck down the federal government’s attempt to exert jurisdiction under migratory bird legislation over man-made ponds. The federal government argued that the birds couldn’t tell if the ponds were man-made or not, and the availability of these ponds affected the interstate and international flight of migratory fowl. The Supreme Court held this was not sufficient for the federal government to exercise its jurisdiction. [The individual mandate] is a very close parallel to this statute.

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