INTEREST OF AMICI

Anti-Defamation League

People for the American Way Foundation

National Gay and Lesbian Task Force

NOW Legal Defense and Education Fund

National Conference for Community and Justice

Human Rights Campaign

National Coalition Against Domestic Violence

National Federation of Filipino American Associations

India Abroad Center for Political Awareness

National Urban League

National Council of Jewish Women

National Women's Law Center

American Association of University Women

SUMMARY OF ARGUMENT

ARGUMENT

THE AGGREGATION PRINCIPLE IS A FUNDAMENTAL AND WELL-GROUNDED CONSTITUTIONAL DOCTRINE THAT SHOULD BE RETAINED BY THIS COURT
1. The Cumulative Impact Test is Firmly Rooted in Our Nation's Economic Life and Well Settled in its Constitutional History

2. The Cumulative Impact Test Strongly Enforces the Important Federal Interest in Uniform Civil Rights Protections

3. The Case Before the Court Demonstrates Appropriate Circumstances in Which to Apply the Aggregation Principle

4. Rejecting the Cumulative Impact Doctrine and the Laws It Supports Would Undermine the Settled Expectations of the People of our Nation

INTEREST OF AMICI

this Court in numerous cases urging the unconstitutionality or illegality of discriminatory practices or laws, or defending government enactments designed to prevent or punish discrimination and hate. These include many of the Court's landmark cases in the area of civil rights and equal protection, as well as several cases addressing Commerce Clause issues in connection with civil rights enactments.²

People for the American Way Foundation

National Gay and Lesbian Task Force

have been the victims of domestic and other gender-motivated violence.⁴

National Conference for Community and Justice

National Coalition Against Domestic Violence

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The case before the Court today does not directly concern a civil rights law. But its resolution -- should the Court abandon the "cumulative impact" or "aggregation" principle that historically has been used to evaluate exercises of the Commerce Clause power -- may cast serious doubt on the previously well-accepted foundations of some of the central civil rights laws of our time. Amici therefore appear in this case to demonstrate that the aggregation principle is a well-founded rule whose application is of great utility in determiningwhether Congress has acted consistently with the powers conferred on it by the Constitution -- as it has here indisputably done. Amici also appear to point out that the civil rights protections supported by the aggregation principle not only are part of our settled expectations as a society, but also have been prime movers in the evolution of the freest nation in the world, whose fundamental social liberties have been in part responsible for its emergence as a dominant world power. The articulation and maintenance of the enumerated powers of Congress, as well as the balance between local and central power, have been well served by the constitutional regime that the Court reexamines in this case. In disregarding that regime, the Court would act at the peril of settled expectations as to our nation's civil and human rights.

STATEMENT

2. The parties concede, and the Seventh Circuit found, "that the waters of [the landfill site were a habitat for migratory birds." Solid Waste Agency of NorthernCook County v. United States Army Corps of Engineers, 191 F.3d 845 (7th Cir. 1999). The circuit court further found that "the destruction of migratory bird habitat and the attendant decrease in the population of these birds 'substantially' affects interstate commerce." Solid Waste Agency of Northern Cook County, 191 F.3d at 850. The activities of observing, hunting, and trapping migratory birds are a not insubstantial component of the national economy, entailing the expenditure of billions of dollars each year, and travel across state lines.

3. While mindful that the Corps of Engineers' actions prohibiting the filling of ponds that serve as migratory bird habitat could be seen as a purely local regulation, the circuit court was equally clear that proper implementation of the Commerce Clause power requires Congress to consider the "aggregate effect" of individual or local actions in order to assess whether, overall, such actions have a "substantial effect" on interstate commerce. "The effect may not be observable as each isolated pond used by the birds for feeding, nesting, and breeding is filled, but the aggregate effect is clear, and that is all the Commerce Clause requires." Solid Waste Agency of Northern Cook County, 191 F.3d at 850.

4. The Court granted certiorari to consider two questions. First, whether the Corps of Engineers, consistent with the language and intent of the Clean Water Act, may assert jurisdiction over isolated intrastate waters because they serve as habitat of migratory birds. Second, whether the exercise of such jurisdiction is within the power conferred on Congress by the Commerce Clause. Put differently, the question is whether, by reason of the conceded aggregate substantial effect on the national economy of the destruction ofmigratory bird habitat, our central government may invoke its commerce power.⁵

SUMMARY OF ARGUMENT

2. The boundaries of the commerce power have been developed and articulated by this Court over almost two centuries of case law and social and economic development. The exercise of that power here must be analyzed within the context of the pragmatic test first articulated by Gibbons v. Ogden, and elaborated in the cases that have enunciated the substantial effects test and the aggregation principle in the modern era. When viewed within that setting, this exercise of federal power-- as well as that exercise which underlies adoption of numerous civil rights protections -- is undoubtedly consistent with the commerce clause.

3. The aggregation principle has served as the cornerstone of the federal power underlying some of this

nation's most important civil rights enactments. In the civil rights context, the cumulative effect or aggregation principle has in this Court's view provided the support for the Civil Rights Act of 1964, and for other laws that protect the access of protected groups to the national economic life, and as such are within the paradigm of federal power.

4. As a long-standing pillar of the commerce power, the aggregation principle is part of the settled expectations of our people and our nation. Likewise, the laws it supports are a part of those settled expectations. The rule of stare decisis is an important one. No departure from it is warranted in the circumstances of this case.

ARGUMENT

A. The Cumulative Impact Test is Firmly Rooted inOur Nation's Economic Life and Well Settled in itsConstitutional History.

Article I, § 8 of the United States Constitution gives Congress the authority to "regulate Commerceamong the several States." U.S. Constitution Art. I, § 8. In Gibbons, Chief Justice Marshall enunciated the view that congressional power over "commercial intercourse" extended to all commercial activity having any interstate component, aspect, or impact, however indirect, and thatCongress's commerce power is "plenary," absolute within the sphere of legislation with respect to all "commerce which concerns more states than one." Id. at 194. Under this view, the sole constraint on the commerce power is the democratic process itself. "The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, the sole restraints . . . on its abuse." Id. at 197.

Notwithstanding the clear mandate of Gibbons, the Court retreated from this expansive view and during the period 1887 through 1937 sought to deny Congress the power to deal with uniquely national problems. The Court ignored "the singie, national market still emergent in our own era." United States v. Lopez, 514 U.S. 549 568 (1995) (Kennedy, J., concurring). At the same time, the Court engaged in an artificial hermeneutics of the term "commerce" that sought to justify a narrow and confined reading of national power. E.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936) (distinguishing between commerce and production). The retreat from Chief Justice Marshall's view culminated in a series of decisions that struck down Congress's efforts to deal with the worst economic depression this nation had ever suffered. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). See Lopez, 514 U.S. at 571-72 (Kennedy, J., concurring).

Following the close of that now-outmoded jurisprudential era, however, the Court resoundingly rejected its former fragmented view of the Commerce Clause power, and reaffirmed the pragmatic rule first enunciated by Chief Justice Marshall in Gibbons. Thus, beginning with the landmark decision in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), the Court began to develop a modern view of the commerce power,in keeping with a truly national economy. The Court there held that Congress could regulate labor relations at an integrated manufacturing and interstate sales enterprise because labor unrest and work stoppages at such a business "would have a most serious effect upon interstate commerce." Id. at 41, 42.

Following Jones & Laughlin, the Court developed the pragmatic "substantial effects" test, which focused on the "effect" on interstate commerce of a regulated activity. At the same time, it rejected the ritualistic search for whether an activity was in the current of commerce. In United States v. Darby, 312 U.S. 100 (1941), for example, the Court approved federal regulation of wages and hours of workers because effectuation of the Commerce Clause power conferred on Congress the power to protect the national economy.

In Wickard v. Filburn, 317 U.S. 111 (1942), the Court further reaffirmed the plenary scope of Congress's power to regulate activities that substantially affect commerce by enunciating the "aggregation" or cumulative effect" principle. Id. at 129. In that case, the Court held that Congress could regulate a farmer's production of wheat for home consumption, because the cumulative effect of such consumption might alter the supply-and-demand relationships of an interstate market. The Court approved the regulation of a specific intrastate activity that "may be trivial by itself," because the effect on interstate commerce of that activity, "taken together with that of many others similarly situated, is far from trivial." Id. at 127-28.

In both Darby and Wtckard, the Court looked not only to the Commerce Clause but also to the Necessary and Proper Clause, as it was explicated by the Court in McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819).The Necessary and Proper Clause augments the Commerce Clause, and gives Congress the broad prerogative to determine the means by which it will effectuate its policy regarding interstate commerce. Id. at 420-21.⁶

The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce.

The Court's most recent cases examining Congress's power under the Commerce Clause confirm that Congress may regulate local activities, when necessary to protect the national economy, because of their effects beyond state borders.⁷ See United States v. Morrison, 120 S.Ct. 1740 (2000) (finding no interstate effect of gender-motivated violence); United States v. Lopez, 514 U.S. 549, 559 (1995) (finding no sufficient interstate commerce effect from firearms possession near schools). As stated in Morrison, the Court will sustain "a wide variety of congressional Acts regulating intrastate economic activity where [the Court] conclude[s] that the activity substantially affect[sl interstate commerce." Morrison, 120 S.Ct. at 1750 (quoting Lopez).⁸

Using cumulative impact principle to determine substantial effect is a settled rule of constitutional

⁸ Wickard retains its constitutional vitality today. Yet precisely because it demonstrates how far the commerce power may constitutionally reach, it also discloses the weakness in an analysis that does not take into account the aggregate effects of individual acts. Growing wheat for home use has no effect on interstate commerce, except in the aggregate.

adjudication that should not be rejected or weakened. The Court today would disregard this principle at the peril of upsetting an analytic structure that has served both the Court and the nation well in ascertaining the bounds of congressional power.

B. The Cumulative Impact Test Strongly Enforces theImportant Federal Interest in Uniform Civil RightsProtections.

Among the laws that have become so interwoven in the fabric of our national life as to make that life inconceivable (or certainly undesirable) without them are the seminal civil rights laws of the 1960s. The cumulative impact or aggregation principle first enunciated by this Court in Wickard provides the constitutional cornerstone of those laws. In the first cases to consider the constitutionality of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., the Court upheld a prohibition on racial discrimination at, respectively, a local motel and a local restaurant. Heart of Atlanta Motel, Inc. u. United States, 379 U.S. 241 (1964), and Katzenbach u. McClung, 379 U.S. 294 (1964). Despite the purely local nature of these businesses, the Court emphasized the aggregate effect that racial discrimination in such activities would have on interstate commerce. The Court pointed to potential inhibition of interstate sale of goods, obstructions to interstate travel, and obstacles to the establishment of new business enterprises, all plainly evils that Congress sought to address in enacting this legislation.. Katzenbach v. McClung, 379 U.S. 294 (1964).⁹

In responding to the objection, lodged in Heart of Atlanta, that the "operation of the motel here is of a purely local character," the Court quoted from United States v. Women's Sportswear Mfg. Ass'n, 336 U.S. 460, 464 (1949): "If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze." Heart of Atlanta, 379 U.S. at 258. Reaffirming both the substantial effects test and the aggregation principle of Wickard, the Court looked to the aggregate impact that local activities might have on national commerce.¹⁰

In the civil rights arena, the "cumulative impact" or "aggregate effects" principle gives due and proper weight to the effect of discriminatory activities on the national economic life of this country and its peoples, even in such local, non-commercial activities as education, voting, and protection from violence. Discrimination in the classroom, the housing markets, and the work force objectively deters individuals from full participation in the national economy. Less obviously, the experience of being denied access to schools or of being the object of hate-based violence subjectively impedes people's ability to work, to employ others, to invest and to consume. The primary purpose of civil

rights protections "is the vindication of human dignity and not mere economics," yet regardless of their purpose Congress has unquestionable authority under the Commerce Clause to enact them because they substantially affect interstate commerce. Heart of Atlanta, 379 U.S. at 291-93 (Goldberg, J., concurring).

As used by this Court in Katzenbach v. McClung and Heart of Atlanta, the cumulative impact principle appropriately secures entry into, and full participation in, the national economy for all Americans. Stated otherwise, the principle serves to protect the economic life of this country for all its citizens, and is thus undoubtedly within the plenary commerce power. In the last analysis, the aggregation precept is nothing more than a refinement of the bedrock principle that this Court reaffirmed once again in Morrison and Lopez: that Congress has the power to regulate intrastate economic activity when the activity substantially affects interstate commerce. Morrison, 120 S.Ct. at 1750.¹¹

Amici are not unmindful that the commerce power is limited, and that Congress, however salutary its purpose, may not reach purely local activities with purely local effects. But if this country's recent civil rights laws were to be challenged on the theory, similar to that

before the Court here, that they are designed to attack purely local conduct, the ultimate results of that local conduct must be taken into account. Local, individual acts of discrimination and violence operate to exclude targeted individuals and, ultimately, targeted groups from the national economic life. By forestalling their entry into certain jobs, thwarting their advancement in jobs held, preventing them from owning homes, refusing them capital to operate their own businesses, or denying them the educations employers demand, purely local, non-commercial acts of discrimination, hate, and violence permit the badges and incidents of second class citizenship to continue to exist. The exclusion of classes of our citizenry from such economic participation cannot be seen as anything other than substantial in terms of its effect on the national economy. Preventing this evil is squarely within the paradigm of appropriate federal power.

C. The Case Before the Court Demonstrates Appropriate Circumstances in Which to Apply the Aggregation Principle.

A practical examination of ultimate effects also underscores the conclusion that the Seventh Circuit was correct in this case. Gradual eradication of migratory bird habitat, although its effects may be virtually unobservable in a local, limited territory, ultimately inhibits people from expending monies and traveling across state lines to hunt, trap, and observe migratory species. The aggregate effect of the activity Congress seeks to regulate -- the filling of wetlands -- plainly would distort the national economy.

Just as decisions like Carter Coal attempted to distinguish between "commercial" and "non-commercial" activities, so here petitioner urges that the applicabilityof the cumulative impact test should turn on whether the regulated activity is "economic." (Brief for Petitioner at45) Yet, a rigid "categorical rule" (see Morrison at 1748) is neither constitutionally required nor logically defensible in order to aggregate the effects of noneconomic activities when the impact of those activities is felt in interstate commerce. To exalt such a rule to a constitutional threshold would thus be error. We suggest instead a more flexible and pragmatic approach; there should be principles that move the debate beyond mere labels.¹² The courts may ask a series of questions to determine whether a given regulation falls within the spheres of legitimate exercise of the commerce power, as augmented by the Necessary and Proper Clause. Some are: Does the subject matter entail special federal competence? Does congressional action address an absence of effective local regulation and enforcement? Is the subject traditionally a matter of national concern? Does the activity regulated have inherent interstate effects?

The federal government has developed special competence in a variety of areas in part because of the dual sovereign nature of our national and local governments, in part because the people, through their elected representatives, have reposed power in the national government over two hundred and more years, and in part because Congress has dedicated resources at the federal level to problems of national scope. See, e.g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973). An absence of effective local regulation and enforcement leaves the power to enact such regulations in the hands of Congress under the Commerce Clause. See, e.g., North Amen can Co. v. SEC, 327 U.S. 686, 704 (1946) ("The constitutionality of [the statutel thus becomes apparent" when viewed in light of the congressional objective "to rejuvenate local utility management, and to restore effective state regulation, both of which had been seriously impaired.") Similarly, a congressional finding that there is no tradition of effective local regulation is owed judicial deference and justifies Congress in acting to remedy national problems.

Certain areas are a traditional subject of national concern, and in those areas Congress self-evidently retains power to regulate. (As a corollary to this factor, the Court may consider whether congressional exercise of the commerce power will not interfere with areas of traditional state concern. See Jones v. United States, 120 S.Ct. 1904 (2000); Lopez, 514 U.S. at 580 (Kennedy, J., concurring).)

Similarly, certain activities, regardless of whether they may be said to have a "substantial effect" on national commerce, nonetheless have an inherent interstate effect. The filling of wetlands, even isolated, intrastate ones, has an inherent interstate effect. It reduces the habitat available to migratory wildlife, whoselives have no reference to state geographic boundaries. In this connection, the Court traditionally, and properly, has shown great deference to legislative findings of impact on interstate commerce. See Hodel, 452 U.S. at 276; Katzenbach, 379 U.S. at 3 03-4; Heart of Atlanta, 379 U.S. at 258.

Civil rights protection traditionally is the special province of the federal government, as shown by the history of civil rights enforcement in this country. The underlying policy is embodied in the Fourteenth Amendment, which represents a reaffirmation of the federal, constitutional right of equality and fair treatment. Congress enacted the first Civil Rights Act in 1866, explicitly in response to the states' failure to shield individuals adequately from discrimination. Nearly a century later, Congress again found that the states were failing to enforce the civil rights of racial and other minorities, and enacted the Civil Rights Act of 1964. Such efforts, especially following the 1964 Act, have not been wholly to the exclusion of state and local regulation, yet nevertheless the history of civil rights enactment and enforcement demonstrates that the area has been traditionally entrusted to the national government.

Civil rights is also a matter of special national concern. The commerce power necessarily entails the power to protect every individual from local acts of violence and discrimination that prevent that individual from entering and fully participating in a national economy.

D. Rejecting the Cumulative Impact Doctrine and theLaws It Supports Would Undermine the SettledExpectations of the People of our Nation.

The Court's decisions in Lopez and Morrison are plainly based on the interpretation of the Commerce Clause in Wickard and the seminal civil rights cases discussed above. These cases in turn are based on the aggregation principle. Thus, throughout the 60 years that it has been employed by the Court, the laws that the aggregation principle buttresses have shaped the nation's social evolution. As a result, Americans have come to expect and believe that their national government shields them from hate, bias, and prejudice, whatever its source. To say now that the allocation of power that supports this source of security is jurisdictional error would topple the structure of modern American federalism. Respect for precedent and for the settled expectations of the American people caution against so radical a reversal.

In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854 (1992), the Court specified four circumstances in which it might be appropriate to upset such a settled line of precedent. None applies here. The first is the "rare" case where a "prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed." Casey, 505 U.S. at 854. Neither constitutional scholars nor the Justices of this Court are unanimous in their evaluation of the cumulative impact doctrine. That there are right-thinking lawyers, judges, and scholars who regard the rule as well-founded belies any contention that it is plainly erroneous. A rule of constitutional adjudication that has endured for the last half-century cannot be said to have been "doomed" from adoption.

The second circumstance is where "the rule has proven to be intolerable simply in defying practical workability." Id. The cumulative impact test has yielded workable results for many years. It requires a calculus no more complex than any the Court employs in resolving other competing claims. As reinforced by the flexible and pragmatic analysis discussed above, the cumulative impact test furnishes a practical framework for articulating the limits on Congress's commerce power.

The third circumstance is where "related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine." Id. at 855. The result petitioner and its amici seek here is not to replace one outmoded rule with another more vital one, but to eliminate a key avenue through which Congress may properly exercise the commerce power. No new doctrine has emerged since Wickard. Indeed, recent decisions indicate that the cumulative impact doctrine retains its vitality -- it is far from having been "abandoned." See, e.g., Allied-Bnwe Terminix, 513 U.S.265.

The fourth circumstance is where "facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification." Id. The integrated national economy that prompted the adoption of the aggregation principle has only broadened and deepened. Now, no less than in the time of Wickard, "Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy." Lopez, 514 U.S. at 574 (Kennedy, J., concurring). Clearly, and equally, civil rights protections are no less vital now and have no less economic effect than they were and had in the time of Heart of Atlanta and Katzenbach. The horrific events in Jasper, Texasand Laramie, Wyoming, while they are egregious and certainly unrepresentative, serve to confirm this.

Casey also established the principle that the Court will give additional weight to a constitutional rule if it "is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation." Casey, 505 U.S. at 854. Overruling or further limiting the cumulative impact doctrine would generate a reexamination of the United States Code so profound and so far-reaching that it would occupy the better part of the next half-century. If the federal government's power to protect civil rights was called into question, millions of Americans would be left without recourse in the face of discrimination. No form of constitutional government could tolerate this type of dislocation.

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Respectfully submitted,MARTIN E. KARLINSIKY, ESQ.(Counsel of Record)GILLY NADEL, ESQ.ROSENMAN & COLIN LLP575 Madison AvenueNew York, New York 10022(212) 940-8800ELIZABETH M. COLEMAN, ESQ.STEVEN M. FREEMAN, EsQ.MICHAEL LIEBERMAN, ESQ.MICHAEL H. SAMPSON, ESQ.ANTI-DEFAMATION LEAGUE823 United Nations PlazaNew York, New York 10017(212) 490-2525ELLIOT M. MINCBERG, ESQ.ALMA C. HENDERSON, ESQ.PEOPLE FOR THE AMERICAN   WAY FOUNDATION2000 M Street, NW.Washington, D.C. 20036(202) 467-4999Attorneys for Amici CuriaeSeptember 2000