The Court’s Abject Failure at Statutory Construction: Sackett v. Environmental Protection Agency

Authors

Sam Kalen

Abstract

The essay critiques the Supreme Court’s novel approach toward statutory construction in Sackett (2023). The Sackett Court considered whether the Ninth Circuit applied the appropriate test to determine whether the Sackett’s property contained wetlands regulated under the Clean Water Act (CWA). In doing so, the Court cast aside what has been considered the operative test for assessing jurisdiction, the significant nexus test. In lieu of that test, the majority articulated a considerably constrained understanding of the CWA’s reach. This essay explores how it reached that understanding and why some of the Justices’ analysis is as problematic as the operative conclusion. I explain why the majority opinion and one of the concurring opinions not only shunned any typical analysis when construing a statute, it ostensibly relied on history surrounding navigability without portraying that history with any semblance of thoroughness.

Recommended Citation

Sam Kalen, The Court’s Abject Failure at Statutory Construction: Sackett v. Environmental Protection Agency, 73 Cath. U. L. Rev. 531 (2024).
Available at: https://scholarship.law.edu/lawreview/vol73/iss4/6