The 4th U.S. Circuit has been making big news lately. In December, a three-judge panel walloped the wetlands law. On March 3, the full court heard argument in a case involving VAWA (the Violence Against Women Act of 1994). Counsel in both cases surely will seek Supreme Court review.
The wetlands case goes back to 1988, when James J. Wilson, a prominent developer in Maryland, pursued work on his planned community of St. Charles. He and his associates wanted to build upon four specific parcels of land. Their own engineers advised them that the parcels probably would be defined as wetlands under the Clean Water Act of 1972. If so, Wilson would need a permit from the Army's Corps of Engineers.The developers went ahead anyhow. They brought in backhoes and dug drainage ditches. They spread a considerable amount of fill dirt and gravel on the plot. The Corps of Engineers obtained a restraining order, and the lawyers marched in.
A grand jury indicted Wilson on felony charges of pollution. Defense lawyers contended that the act, as applied to the four parcels in question, amounted to an unconstitutional expansion of the Constitution's Commerce Clause. After a seven-week trial, a jury found him guilty. The district court sentenced him to 21 months in prison and a million-dollar fine. Two other defendants were fined $3 million and placed on five years' probation.
On appeal to the 4th Circuit, Wilson won on a 2-1 vote. Circuit Judges Paul V. Niemeyer and J. Michael Luttig shocked the government. They reversed the convictions. The government asked for reargument but the full court denied the motion.
Judge Niemeyer's opinion went straight to the heart of the Clean Water Act. The act prohibits the pollution of "navigable" waters of the United States. By liberal interpretation of that word "navigable," federal courts and federal regulators have greatly expanded the jurisdiction of the Corps of Engineers. The law now covers even puddles and potholes.
In the case at hand, the four parcels were 10 miles from the Chesapeake Bay, six miles from the Potomac River, and hundreds of yards from the nearest creek. The land was not "adjacent" to any waters that were even remotely subject to navigation. The government argued that Wilson's drainage ditches "could" affect interstate commerce somehow, someday. The trial jury bought that limp contention, but Judges Niemeyer and Luttig, on appeal, would have none of it. The corps' regulation, they ruled, offended the Commerce Clause.
The 4th Circuit's view of the Violence Against Women Act went the other way. This was the ugly case of Christy Brzonkala at Virginia Polytechnic Institute. The young woman, a freshman student, had barely arrived on campus in 1994 before two Tech football players raped her.
The university behaved disgracefully. After some puffing and blowing, Tech reduced the charge against the players from raping to cursing, gave them a wink and a nod, and sent them back to give their all for the Hokies. Justifiably outraged, the victim sued the two players under VAWA.
In U.S. District Court, Judge Jackson L. Kiser dismissed her complaints. In a carefully reasoned opinion, he held that VAWA amounted to an unconstitutional expansion of the Commerce Clause. Rape, he ruled, could be criminally prosecuted as rape, but not for its effect on interstate commerce.
I thought Judge Kiser's opinion as to VAWA was a model of thoughtful jurisprudence. The Commerce Clause has its limits, he concluded, and the act exceeded them. In support of the law, a House committee had found that acts of violence directed at women "decrease the supply of and demand for interstate products." Such violence, said the committee, deters women from going to work for interstate firms. Judge Kiser found his sense of credulity sorely strained. The act lacked a constitutional foundation.
On appeal, the 4th Circuit panel voted 2-1 to reverse. The House report, said Circuit Judge Diana G. Motz, provided abundant foundation. For one thing, battered women cannot go to work. Their loss of productivity plainly affects interstate commerce. Congress had a rational basis for approving the law.
Judge Luttig, who had been on the winning side in wetlands, was on the losing side here. True to his principles of limited government, he wrote a vigorous dissent.
You win some, you lose some. I applaud the wetlands decision and deplore the VAWA decision. In my old-fashioned view, rape isn't commerce and ditches aren't meant for cargo ships. Let's hear it for Judge Luttig! May his tribe increase.