Kagan, J., concurring in judgement
even if it conflicts with judges’ policy preferences. The majority’s first pass through the statute is, as Justice Kavanaugh says, “unorthodox.” Post, at 9. “A minus B, which includes C”? Ante, at 19. The majority could use every letter of the alphabet, and graduate to quadratic equations, and still not solve its essential problem. As the majority concedes, the statute “tells us that at least some wetlands must qualify as ‘waters of the United States.’ ” Ante, at 18–19. More, the statute tells us what those “some wetlands” are: the “adjacent” ones. And again, as Justice Kavanaugh shows, “adjacent” does not mean adjoining. See post, at 4–6; supra, at 1–2. So the majority proceeds to its back-up plan. It relies as well on a judicially manufactured clear-statement rule. When Congress (so says the majority) exercises power “over private property”—particularly, over “land and water use”—it must adopt “exceedingly clear language.” Ante, at 23 (internal quotation marks omitted). There is, in other words, a thumb on the scale for property owners—no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting. See supra, at 2.
Even assuming that thumb’s existence, the majority still would be wrong. As Justice Kavanaugh notes, clear-statement rules operate (when they operate) to resolve problems of ambiguity and vagueness. See post, at 11; see also Bond v. United States, 572 U. S. 844, 859 (2014); United States v. Bass, 404 U. S. 336, 347 (1971). And no such problems are evident here. One last time: “Adjacent” means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. That congressional judgment is as clear as clear can be—which is to say, as clear as language gets. And so a clear-statement rule must leave it alone. The majority concludes otherwise because it is using its thumb not to resolve ambiguity or clarify vagueness, but instead to “correct” breadth. Those paying attention have seen this move
