Thomas, J., concurring
sovereignty was transferred to each of the 13 fully sovereign States. See Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842) (“[W]hen the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government”). Thus, today, States enjoy primary sovereignty over their waters, including navigable waters—stemming either from their status as independent sovereigns following Independence, ibid., or their later admission to the Union on an equal footing with the original States, see Lessee of Pollard v. Hagan, 3 How. 212, 230 (1845) (“The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the states respectively. … The new states have the same rights, sovereignty, and jurisdiction over this subject as the original states”); see also M. Starr, Navigable Waters of the United States—State and National Control, 35 Harv. L. Rev. 154, 169–170 (1921). The Federal Government therefore possesses no authority over navigable waters except that granted by the Constitution.
The Federal Government’s authority over certain navigable waters is granted and limited by the Commerce Clause, which grants Congress power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, §8, cl. 3. From the beginning, it was understood that “[t]he power to regulate commerce, includes the power to regulate navigation,” but only “as connected with the commerce with foreign nations, and among the states.” United States v. Coombs, 12 Pet. 72, 78 (1838) (Story, J., for the Court); accord, Gibbons v. Ogden, 9 Wheat. 1, 190 (1824) (“All America understands … the word ‘commerce,’ to comprehend navigation. It was so un-
