Migratory Birds and the Administrative State

Authors

David A. Strauss, University of ChicagoFollow

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2493

Abstract

Solid Waste Agency of Northern Cook County v United States Army Corps of Engineers,¹ a case in which Judge Diane Wood wrote the opinion for a unanimous Seventh Circuit panel, addressed important questions about both the Commerce Clause and the Clean Water Act² (CWA). The Supreme Court reversed the Seventh Circuit’s decision by a vote of five to four. To read the Supreme Court’s majority opinion side by side with Judge Wood’s is to see a contrast that does not, to put it mildly, make the Supreme Court look good. Judge Wood’s opinion is lucid, careful, and measured; it deals with the complexities of environmental protection in a realistic way. The majority opinion of the Supreme Court is loosely reasoned and almost transparently result oriented. As it turned out, the Supreme Court’s decision in SWANCC (as it is abbreviated) was a first step in rolling back the federal government’s power to implement the CWA.⁴ And the contrast between what Judge Wood did and what the Court did is a warning about the future not just of environmental protection but of the administrative state.

Recommended Citation

Strauss, David A. (2020) "Migratory Birds and the Administrative State," University of Chicago Law Review: Vol. 87: Iss. 9, Article 10.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol87/iss9/10