Wetlands should be worried. Changing jurisprudential norms against land use regulation threaten Congress’s ability to refine the realm of appropriate property use. This comes as adaptation of property and the law becomes increasingly important—as properties everywhere change with the climate. But no longer. Recognizing the importance of the Swampbuster provision within the American system of agricultural subsidies, this Note starts with a first-principles examination of private property norms, furthering the Hegelian notion that civil society must condition property use to promote the welfare of both market participants and society. It establishes that agricultural wetlands are important and create a collective action problem that the government should solve. It details threats to agricultural wetlands, including a changing physical, legislative, and judicial climate.

This Note offers three interventions. First, this Note establishes, on originalist grounds, that intervention into agricultural practices is more than just acceptable: It is both normatively enshrined in the history of American agriculture and practically required. Second, this Note critically examines a market-oriented theory of unconstitutional conditions to justify judicial deference to Congress’s recognition of coercive market forces which justify market interventions. Third, this Note calls for Congress to reaffirm the importance of agricultural wetlands in America, the Swampbuster program itself, and Congress’s basis for protecting wetlands.