Bench Memos

The Rapanos Decision

The initial news that the Supreme Court ruled against the federal government’s assertion of near-unlimited jurisdiction over wetlands under the Clean Water Act was encouraging — even if Justice Kennedy provided the fifth vote in a separate concurrence. Then I read the decisions. I plan to ponder them some more, but my initial take is that the landowners won the battle but lost the war, largely because of how much leeway Justice Kennedy’s pivotal opinion gives to the government. I summarized my initial reactions on Volokh here .

For other reactions to the case, check out GMU law professor Ilya Somin (here ), the Cato Institute’s Mark Moller (here and here ), and the Pacific Legal Foundation’s Rapanos Blog. The opinions themselves are availabel here .

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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