Attack of the Zebra Mussels

Book used: Constitutional Law, 16th Edition, 2007. Sullivan and Gunther. Foundation Press.

Zebra Mussels, native to Russia, were transported by boat to the States and are now infiltrating the Great Lakes, Mississippi, Tennessee, Hudson and Ohio rivers basins. Environmentally, this species existence significantly alters the waters they infest and consequently, almost every other native species are affected. Some species, like sturgeon, yellow perch and catfish feed and the Zebra Mussels and thrive. Others, like the unionid clams, are becoming extinct due to the invaders. Economically, the Zebra Mussels are expected to cause billions of dollars of damage in the next ten years. For example, the town of Monroe in Michigan lost its water supply due to clog of Zebra Mussels. In fact, people whom take water from infested areas have altered their water-intake systems and purchased chemical treatments in order to admonish the infestation. Due to the environmental and economic impact of the Zebra Mussel, let us assume The Zebra Mussel Containment Act of 2012 has passed.

To summarize, this law is enacted by Michigan and will be policed by Michigan via the Department of Natural Resources. Waters will be designated as (1) infested, (2) pristine but endangered, and (3) pristine. For pristine and pristine and endangered waters, small equipment and compartments will be inspected for zebra mussels and cleaned. The equipment will need to air dry for five days. Boat hulls, anchors and trailers will be cleaned and must dry for two weeks, or one week in hot and dry weather. Boats must be state certified at a fee of $100 for state residents ad $200 for non-residents. Uncertified equipment may result in a fee of up to $10,000. Thus, what constitutional challenges to this Act may arise? Will the 2012 Supreme Court sustain the Michigan law?

There are four constitutional categories that could challenge The Zebra Mussel Containment Act of 2012: the Supremacy Clause, Commerce Clause, Dormant Commerce Clause, and the Privileges and Immunity Clause of the Fourteenth Amendment. Even though entire books have been written on each of these issues, and it would be seemingly impossible to demonstrate the depth of the arguments in just a few short pages—I begin.

The Supremacy Clause of the Constitution states that the “Authority of the United States, shall be the supreme Law of the Land…” Thus a national law regulating Zebra Mussels would supersede and invalidate the Michigan law. Additionally within the framework of the Supremacy Clause, because the Michigan law charges boat owners a fee, Marshall’s salient words from McCulloch v. Maryland stand to be repeated, “The power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create…” (70). Surely, once the Department of Natural Resources demands its fees and processes fines, economic activity would dramatically decrease—principally since the vessel will not go back into the water for one to two weeks. I think that the Court would invalidate the Zebra Mussel Act based on the Supremacy Clause.

The Commerce Clause could be a deadly blow to the Michigan law because, as Marshall stated in Gibbons v. Ogden, “All America understands, and has uniformly understood, the word ‘commerce’ to comprehend navigation” (84). Marshall continues to inform the reader that commerce cannot stop at one state and begin in another, and in this case, Michigan explicitly intends to grossly affect the navigation of non-residents through fees, fines and keeping vessels on land for one to two weeks. The Court would find that Michigan is disrupting the proper “commercial intercourse” (83). The commerce power is the power of the federal government to regulate interstate commerce, not the state of Michigan. Even if Michigan’s intention is to preserve the pristine waters and to alleviate severe economic disruption due to an invasive species, it is not in their power to regulate interstate commerce—navigation.

The Dormant Commerce Clause could also send The Zebra Mussel Containment Act of 2012 to its grave. The Court ruled in Philadelphia v. New Jersey that the environmental protection violated the principle of economic nondiscrimination. Stewart wrote, “a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy” (185). He stated that the Court has consistently found legislation to protect the State from interstate commerce to be constitutionally invalid (185). Stewart does mention that quarantine laws have been upheld by the Court, such as laws to destroy diseased livestock, even through interstate commerce in order to protect the people. Yet the Michigan Act, like the New Jersey decision, would cede that there is no evidence that Zebra Mussels endanger human health. In my opinion, today’s Court would strike down the Michigan law via the Dormant Commerce Clause.

The Privileges and Immunities Clause of the Fourteenth Amendment states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” (A-11). Since Michigan would have non-residents pay a fee to travel into Michigan waters, this would clearly abridge their privileges. As Justice Stevens opined in Saenz v. Roe, “[The] word ‘travel’ is not found in the text of the Constitution. Yet the ‘constitutional right to travel from one state to another’ is firmly embedded in our jurisprudence” (348). Michigan would not be allowed to tax boats entering their waters just as it would not be allowed to tax cars crossing the border.

Overall, the fact remains that the Michigan law does desire to regulate every ship originating from any external and internal waterways. Though the Zebra Mussel infested ballast content should be cleaned, Marshall explained in Gibbons v. Ogden that navigable entities were for Congress to regulate, no matter how noble the State law is at its heart. Justice Douglas wrote profoundly regarding this issue in Bibb v. Navajo Freight Lines, Inc, “Like any local law that conflicts with federal regulatory measures, [state] regulations that run afoul of the policy of free trade reflected in the Commerce Clause must also bow” (220).

Thus, the Court would sternly overturn the The Zebra Mussel Containment Act of 2012, whether through the Supremacy Clause, Commerce Clause, Dormant Commerce Clause, or the Privileges and Immunities Clause of the Fourteenth Amendment. Michigan simply does dot have the authority to regulate interstate commerce for the noble cause of keeping Zebra Mussels out of non-zebra mussel territory—especially when they desire to keep commerce out of the water for a week or two at a time.

What’s a State to do under this strict federal regulatory structure—imposed via Supreme Court precedents–to be continued by the Supreme Court? Can the people of a State not protect it’s own land–and water?

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