Thomas, J., concurring
the CWA). Finally, even assuming that a navigable water is involved, the agencies have not established that the Sacketts’ actions would obstruct or otherwise impede navigable capacity or the suitability of the water for interstate commerce. See Rio Grande Dam & Irrigation Co., 174 U. S., at 709.
This is not to say that determining whether a water qualifies under the CWA is always easy. But, it is vital that we ask the right question in determining what constitutes “the waters of the United States”: whether the water is within Congress’ traditional authority over the interstate channels of commerce. Here, no elaborate analysis is required to know that the Sacketts’ land is not a water, much less a water of the United States.
IV
What happened to the CWA is indicative of deeper problems with the Court’s Commerce Clause jurisprudence. The eclipse of Congress’ well-defined authority over the channels of interstate commerce tracks the Court’s expansion of Congress’ power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, §8, cl. 3. As I have explained at length, the Court’s Commerce Clause jurisprudence has significantly departed from the original meaning of the Constitution. See Gonzales v. Raich, 545 U. S. 1, 58–59 (2005) (dissenting opinion); Lopez, 514 U. S., at 586–602 (concurring opinion). “The Clause’s text, structure, and history all indicate that, at the time of the founding, the term ‘ “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes.’ ” Raich, 545 U. S., at 58. This meaning “stood in contrast to productive activities like manufacturing and agriculture,” and founding era sources demonstrate that “the term ‘commerce’ [was] consistently used to mean trade or exchange—not all economically gainful activity that has some attenuated connection
