The Commerce Clause isn’t a “do-whatever-you-feel-like” power

In an article published today by the Federalist Society’s Engage, I discuss PLF’s constitutional challenge to the Endangered Species Act in the prairie dog case.

As you’ll recall, we represented People for the Ethical Treatment of Property Owners — a group of Utah residents who have suffered for decades under federal regulations to protect the Utah prairie dog — in a successful challenge against a regulation that makes it a crime to do anything that affects a single prairie dog or its habitat. We argue that neither the Commerce Clause nor the Necessary and Proper Clause allow the government to regulate all activity that affects a species found in only one state that is not used in commercial activity or itself traded. The government’s argument to the contrary — that it can regulate any activity that affects any species that affects the environment — would eviscerate any limits on federal power and allow regulation of any activity that affects any person. We’re now defending our victory in the Tenth Circuit.

Ultimately, we think this case should be heard by the Supreme Court, which hasn’t heard a single constitutional challenge to the Endangered Species Act during the 40 years since its enactment. From the article:

Despite the number of previous constitutional challenges to federal regulation of take of intrastate, noncommercial species, the Supreme Court has never weighed in. This despite Chief Justice Roberts’—then on the D.C. Circuit—famous dissent from a denial of rehearing en banc that the grounds for upholding federal regulation of take are inconsistent with Supreme Court precedent. The issue certainly presents an important question of federal law. The Endangered Species Act broadly forbids (in fact, criminalizes) any activity that adversely impacts a single member of a species or its habitat and applies this prohibition to approximately 1,500 species spread throughout the country. With environmental groups seeking to add additional species to this list by the hundreds, the consequences of getting this constitutional question right will only continue to grow. With a path breaking decision in the district court, and the possibility of a circuit split if it is affirmed, perhaps this will be the case where the Supreme Court finally resolves this question.