Today, the WSJ has editorialized in favor of a cert grant in the case:
In 2011 the Courtney brothers sued with the help of the Institute for Justice, arguing that the 55-mile long lake in the Cascades is among the “navigable waters of the United States” and thus they have a right to operate a business on it under the Constitution’s Privileges and Immunities Clause. The Article IV clause was reinforced by the Fourteenth Amendment that says “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Many legal scholars treat the clause as a dead letter since the 1873 Slaughter-Housecases interpreted it narrowly. But Slaughter-House expressly preserved the clause’s protection for “the right to use the navigable waters of the United States, however they may penetrate the territory of the several States.” The Corfield v. Coryell decision of 1823 had previously upheld the right to use waterways in relation to federal law.
This subtlety was lost on the Ninth Circuit Court of Appeals, which ruled in December 2013 that, sure, the Privileges or Immunities Clause protects the right for everyone touse the navigable waters, but not for any economic purposes. The clause only guarantees “a right to navigate the navigable waters of the United States,” the Ninth Circuit wrote, not “to utilize those waters for a . . . specific professional venture” or “to operate a particular business using” those waters. Leave it to the Ninth Circuit to define operating a ferry as different than navigating waters.
The Courtney brothers’ desire to start their own business without the government protecting a monopoly is a good opportunity for the Supreme Court to review the Constitution’s protection for economic rights. The High Court will soon consider the brothers’ request for certiorari, and we hope the Justices take the case.
The Supreme Court called for a response, and it will be considered at the May 29 conference.