The first Monday of October means the Supreme Court begins to hear cases for the new term. As we promised at the end of last term, below we summarize cases the Court could address, including issues involving the federal Clean Water Act; standing and the appropriateness of executive action in the context of an immigration case; and potentially the scope of the “dormant” Commerce clause.   

While some of these decisions are wholly new, one of the cases the Court is considering – Sackett v. EPA – is on their second trip to the Supreme Court.  

Clean Water Act Definition of “Waters of the United States” 

The federal government’s powers to regulate navigable waterways stem from the Constitution’s grant of authority to regulate commerce. Building on the federal government’s powers to regulate commerce, the federal Clean Water Act specifies that it applies to “waters of the United States.” Sackett v. Environmental Protection Agency, the first case set to be heard this term, seeks to provide more clarity for what water bodies are “waters of the United States.” This definition matters because the term represents an important boundary line between federal and state regulatory authority.    

Case Background

Sackett began 18 years ago with the purchase of a small Idaho residential lot. Soon after construction began, EPA issued an administrative compliance order advising the property owners that their property was situated on wetlands considered “waters of the United States.” EPA’s order advised the would-be homeowners to get a federal CWA permit before beginning construction or face fines of up to $75,000 per day.      

Instead of restoring the property, the homeowners filed litigation against EPA in 2008, alleging that EPA’s finding that their property contained wetlands was arbitrary and capricious. This is the second time the case has found its way to the Supreme Court; in 2012, the Court found that the agency’s compliance order was a final agency action subject to review under the federal Administrative Procedure Act (APA). 

Sackett and Rapanos

The disputes in Sackett stem back to the Supreme Court’s 2006 decision in Rapanos v. United States, which also addressed whether CWA extended to non-navigable isolated wetlands. The Court’s decision was split and somewhat confusing:

• In Justice Scalia’s plurality decision, “waters of the United States” is to be defined narrowly using the ordinary public meaning of the term at the time Congress adopted it. In his view, this means “streams and bodies forming geographical features such as oceans, rivers, [and] lakes” or “the flowing and moving masses, as of waves or floods, making up such streams or bodies.” 

• This definition included “only relatively permanent, standing or flowing bodies of water.” This opinion was joined by three other justices.  

• Justice Kennedy’s separate decision offered a “significant nexus” standard allowing federal agencies to regulate wetlands that possessed ecological connection to navigable waterways.  

• Justice Stevens – joined by three others – dissented. He found that the regulator’s finding that the involved lands were encompassed within “waters of the United States” was appropriate as it was a reasonable statutory interpretation to which courts should defer using “Chevron deference.”

Because the decision was split 4-1-4, Supreme Court precedent dictated that the “narrowest” ground controlled. Over time, lower courts applying Rapanos had difficulty establishing which test was “narrowest.” This uncertainty affected regulators, communities, and property owners like the Sacketts. Presumably, the Court agreed to hear this case to address this confusion. 

One final side note on Sackett: even though Chevron deference played a role in Rapanos, it does not play a role in any of the key briefs filed in Sackett. This parallels the Court’s decision last term in American Hospital Association v. Becerra, which we discussed here. 

United States v. Texas

US v. Texas involves state standing and guidance issued under the Administrative Procedure Act (APA). The case stems from two states’ challenge of US Department of Homeland Security’s (USDHS) guidance on immigration enforcement, arguing that the USDHS guidance violates federal immigration law and/or the APA.

Case Background

The basis for the case stems from a memorandum issued by USDHS on September 30, 2021, titled “Guidelines for the Enforcement of Civil Immigration Law,” which became effective on November 29, 2021. These guidelines embrace immigration officials’ enforcement discretion, stating that being a “removable noncitizen” is generally not sufficient, alone, for an immigration official to initiate a removal proceeding. The guidelines aim to focus resources on initiating and enforcing removal when a removable noncitizen is (1) a threat to national security, (2) a threat to public safety, or (3) a threat to border security. The guidelines further caution against making removal decisions based on protected characteristics—such as race, religion, gender, sexual orientation, gender identity, national original, or political association—or as retaliation for a noncitizen’s assertion of a legal right.

Texas and Louisiana challenged this memorandum (as well as its prior, non-final versions), stating that the final memorandum circumvents the requirements to promulgate a rule under the APA as well as runs afoul of Congress’s mandate to ICE to detain various categories of removable noncitizens. In addition to defending its memorandum on the merits, the government argued that Texas and Louisiana did not have the proper standing to bring the suit in the first place.  

A Texas federal district court found that the states had standing and that USDHS’s memorandum ran afoul of both the APA and Congress’s statutory mandates. The Fifth Circuit affirmed the district court, and the government has raised the following three questions for Court review: 

1. Whether the state plaintiffs have standing to challenge USDHS’s Guidelines for the Enforcement of Civil Immigration Law;

2. Whether the Guidelines are contrary to the Administrative Procedure Act; and

3. Whether the lower courts had the requisite authority to enter an order to “hold unlawful and set aside” based on the language of 8 USC §1252(f)(1), which states “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of” federal immigration law related to Inspection, Apprehension, Examination, Exclusion, and Removal.

Last term, the Court evaluated efforts by various states to shape federal policy. These efforts continue with (generally) right-leaning states engaging on various issues related to education, immigration, and environmental policy. A decision US v. Texas could provide guidance on the standing requirements for states to challenge policies, guidance, and rules issued by federal agencies, as well as additional guidance on what is required for an Agency to satisfy the requirements of the APA.  

National Pork Producers Council v. Ross 

The US Constitution’s Commerce Clause authorizes Congress “[t]o regulate Commerce with foreign Nations, and among the several States.” For decades, court decisions have used an unwritten “dormant Commerce Clause” to preclude state laws which serve to directly regulate out-of-state activities. 

State laws violate the dormant Commerce clause when they seek to regulate extraterritorially or substantially burden out-of-state producers without a legitimate local interest. Effectively, “dormant Commerce Clause” jurisprudence serves to preempt state legislation which intrudes on the functioning of interstate markets.  

Case background

National Pork Producers v. Ross stems from a trade group challenge to California’s Proposition 12, which established a civil and criminal for selling pork in California unless the pig it comes from was born to a sow that was housed with 24 square feet of space and in conditions that would allow it to turn around freely without touching her enclosure. Evidence in federal district court established that California imports 99.87% of its pork; that the pork industry uses facilities throughout the US to process pork for sale; and that farmers everywhere generally do not keep sows in individual pens that comply with the requirements of Proposition 12.  

Trade groups sued California officials responsible for implementing Proposition 12, seeking to have the statute declared unconstitutional. The litigation made its way to the Ninth Circuit, which upheld the regulation on the grounds that Proposition 12 functions the same as state restrictions on product labeling or state safety standards which have previously found to be constitutional.  

National Pork Producers v. Ross is scheduled to be heard on October 11. When the case is heard, the Court will evaluate whether Proposition 12’s “pervasive” challenges to an “integrated national industry” violate the dormant Commerce Clause and, indeed, whether the dormant Commerce Clause doctrine itself should continue to exist.  

Missouri v. Biden

The Court has not yet agreed to hear Missouri v. Biden by granting certiorari. 

The Court may use this case to evaluate issues related to the APA and statutory law. Like two decisions last term (summarized here), this case arises from vaccine mandates. Here, from the Centers for Medicare & Medicaid Services’ (CMS’s) vaccine mandate issued for workers in federally-funded healthcare facilities. Ten states challenged the mandate on several fronts, and the mandate was upheld in the lower courts. The states petitioned the US Supreme Court, and the petition for a writ of certiorari is now fully briefed and pending decision. 

Case background

CMS generally establishes health and safety standards—or conditions of coverage—for providers ranging from hospitals to hospices and rural health clinics to long term care facilities. On November 5, 2022, CMS issued an interim final rule with comment period of COVID-19 protocols that included a vaccine mandate. The vaccine mandate requires vaccination against COVID-19 for nearly all workers in federally-funded healthcare facilities, including facility employees, licensed practitioners, students, and volunteers. 

The issues raised for Supreme Court review include whether the involved vaccine mandate is valid under the APA; whether it is supportable under the Constitution’s spending clause, anti-commandeering doctrine, and 10th amendment; and whether CMS’s issuance of the mandate exceeds its statutory authority.