Cite as: 598 U. S. ____ (2023)
9
Thomas, J., concurring
that commerce or navigation. And if congress has the right to regulate every employment or pursuit thus remotely connected with that commerce, of which they have the control, then it has the right to regulate nearly the entire business and employment of the citizens of the several states. … Yet, if congress has the power to regulate all these employments, and a thousand others equally connected with that commerce, then it can regulate nearly all the concerns of life, and nearly all the employments of the citizens of the several states; and the state governments might as well be abolished. It is not sufficient, then, that navigation, or trade, or business of any kind, within a state, be remotely connected, or, perhaps, connected at all with ‘commerce with foreign nations, or among the several states, or with the Indian tribes,’ it should be a part of that commerce, to authorize congress to regulate it.” The James Morrison, 26 F. Cas. 579, 581 (No. 15,465) (DC Mo. 1846).
The Court’s observation that “federal regulation was largely limited to ensuring that ‘traditional navigable waters’ … remained free of impediments,” ante, at 2, thus does no more than reflect the original understanding of the federal authority over navigable waters.
B
As noted above, the scope of Congress’ authority over waters was defined by the traditional concept of navigability, imported with significant modifications from the English common law.[1] Thus, Congress could regulate only “naviga-
- ↑ The English rule tied navigability to the ebb and flow of the tides, but began to be eroded in America as early as the Northwest Ordinance of 1787 due to the superior commercial capacity of American inland rivers. See The Daniel Ball, 10 Wall. 557, 563 (1871); Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 454–457 (1852); see also Economy Light & Power
