The federal interest in non-poisoned reservoirs

[John Noble]

At 2:26 PM -0500 6/12/02, sandy levinson wrote:
>1.  A question:  Is it a federal crime to poison a reservoir?  Assume,
>e.g., that you heard someone plotting to put poison in the local reservoir.
> Would that *necessarily* state the grounds for a conspiracy indictment
>under federal law?
>
>2.  How would the current majority of the Supreme Court justify a federal
>criminal law with regard to poisoning reservoirs that are not, say, linked
>to navigable streams, etc.  Is the argument that reservoirs are "part of
>commerce" inasmuch as the water is sold to users?  But, of course, many of
>the battered spouses left unprotected, federally, after Morrison, were in
>the business of selling their labor, and their being battered left them
>"tainted," as with poisoned water.  Before 1995, of course, one wouldn't
>have to ask such qustions, but inquiring minds want to know what the
>implications of the Court's current positions might be.  (I assume, for
>example, that it would be unconstitutional for Conress to require local
>police departments to engage in extra patrols of reservoirs in order to
>make sure nobody is poisoning them; if that isn't comandeering, I don't
>know what would be.)  And I'm not sure if my colleague Lynn Baker would
>allow Congress to attach to general anti-crime-fighting funds a brand new
>condition that the local department agree to extra patrols without
>additional compensation to cover the costs.
>

I don't think the Court would have trouble concluding that commerce in the
water supply -- like, e.g., commerce in telecommunications (or radioactive
waste) -- is essentially interstate, even though the transport is
intrastate in identifiable instances. But I think you are right that the
anti-commandeering doctrine would be an obstacle to dictating local
government spending on the water supply (as well as radioactive waste).

John Noble