Both judges whose names float­ed around today have poor records on the Endan­gered Species Act. It seems like a rel­a­tive­ly obscure law to be at the cen­ter of Con­sti­tu­tion­al bat­tles, but it makes a lot of sense.

The Con­sti­tu­tion gives Con­gress the pow­er (in Arti­cle 1, Sec­tion 8):

To reg­u­late com­merce with for­eign nations, and among the sev­er­al states, and with the Indi­an tribes;

Exact­ly how you inter­pret “com­merce … among the sev­er­al states” makes a huge dif­fer­ence. As described in Cass Sun­stein’s
The Sec­ond Bill of Rights: FDR’S Unfin­ished Rev­o­lu­tion and Why We Need It More than Ever
, before the New Deal, the Supreme Court over­turned a law which estab­lished max­i­mum week­ly hours for bak­ers in New York State. The Court ruled that an implic­it “right to con­tract” exist­ed which the state could not impose upon. This unwrit­ten “right to con­tract” would bal­ance against the Com­merce Clause. 

In West Coast Hotel v. Par­rish, the Court ruled that:

In each case the vio­la­tion alleged by those attack­ing min­i­mum wage reg­u­la­tion for women is depri­va­tion of free­dom of con­tract. What is this free­dom? The Con­sti­tu­tion does not speak of free­dom of con­tract. It speaks of lib­er­ty and pro­hibits the depri­va­tion of lib­er­ty with­out due process of law. In pro­hibit­ing that depri­va­tion, the Con­sti­tu­tion does not rec­og­nize an absolute and uncon­trol­lable lib­er­ty. Lib­er­ty in each of its phas­es has its his­to­ry and con­no­ta­tion. But the lib­er­ty safe­guard­ed is lib­er­ty in a social orga­ni­za­tion which requires the pro­tec­tion of law against the evils which men­ace the health, safe­ty, morals, and wel­fare of the peo­ple. Lib­er­ty under the Con­sti­tu­tion is thus nec­es­sar­i­ly sub­ject to the restraints of due process, and reg­u­la­tion which is rea­son­able in rela­tion to its sub­ject and is adopt­ed in the inter­ests of the com­mu­ni­ty is due process. This essen­tial lim­i­ta­tion of lib­er­ty in gen­er­al gov­erns free­dom of con­tract in particular.

There is a move­ment which believes that this rul­ing, and a series of oth­ers that legit­imized much of the New Deal, cre­at­ed a “Con­sti­tu­tion in Exile,” replac­ing the “right to con­tract” with a broad­er under­stand­ing of the fed­er­al gov­ern­men­t’s author­i­ty to reg­u­late Commerce.

Many endan­gered species are of no imme­di­ate com­mer­cial val­ue. When egrets were going extinct because of hunt­ing for feath­ers, the US, Cana­da, Mex­i­co, and sep­a­rate­ly with Japan, signed a treaty reg­u­lat­ing the trade in migra­to­ry species. As a treaty, this was coequal with the Con­sti­tu­tion, not sub­ject to reg­u­la­tion under the Com­merce Clause. Reg­u­lat­ing endan­gered species in gen­er­al gets into trick­i­er areas.

In pass­ing the Endan­gered Species Act, Con­gress defined “com­mer­cial activ­i­ty” as

all activ­i­ties of indus­try and trade, includ­ing, but not lim­it­ed to, the buy­ing or sell­ing of com­modi­ties and activ­i­ties con­duct­ed for the pur­pose of facil­i­tat­ing such buy­ing and sell­ing: Pro­vid­ed, how­ev­er, That it does not include exhi­bi­tion of com­modi­ties by muse­ums or sim­i­lar cul­tur­al or his­tor­i­cal organizations.

Since the New Deal, courts have been much more for­giv­ing in terms of Con­gress’s under­stand­ing of the lim­its of “com­merce.” This makes sense. In an inter­con­nect­ed world, com­merce which seems restrict­ed to one state can still affect com­merce in anoth­er state. In the term that just end­ed, the court upheld Con­gress’s author­i­ty to reg­u­late com­merce in mar­i­jua­na grown and sold with­in Cal­i­for­nia, and even mar­i­jua­na which was grown and giv­en away in a sin­gle state. In doing so, they upheld a 1942 prece­dent which insist­ed that a farmer who kept his whole wheat crop was still sub­ject to Depres­sion era mar­ket regulation.

The idea is, by keep­ing his excess wheat for him­self (or excess mar­i­jua­na, in Raich) the farmer reduced mar­ket demand–lowering prices, reduced sup­ply of oth­er nec­es­sary crops–increasing prices, and inter­fered with the fed­er­al plan to “avoid sur­plus­es and short­ages and the con­se­quent abnor­mal­ly low or high wheat prices and obstruc­tions to com­merce.” In Raich, Stevens wrote that:

In both cas­es, the reg­u­la­tion is square­ly with­in Con­gress’ com­merce pow­er because pro­duc­tion of the com­mod­i­ty meant for home con­sump­tion, be it wheat or mar­i­jua­na, has a sub­stan­tial effect on sup­ply and demand in the nation­al mar­ket for that com­mod­i­ty. In assess­ing the scope of Con­gress’ Com­merce Clause author­i­ty, the Court need not deter­mine whether respon­dents’ activ­i­ties, tak­en in the aggre­gate, sub­stan­tial­ly affect inter­state com­merce in fact, but only whether a “ratio­nal basis” exists for so concluding.

O’Con­nor dis­sent­ed, as did Rehn­quist and Thomas. O’Con­nor found a tech­ni­cal way to sep­a­rate the med­ical mar­i­jua­na mar­ket from the recre­ation­al mar­i­jua­na mar­ket, while Thomas thought big.

Thomas saw that case as an oppor­tu­ni­ty to broad­en the state pow­ers already expand­ed by Lopez and Mor­ri­son.

In Lopez, the Court struck down parts of the Gun-Free School Zones Act, hold­ing that:

although this Court has upheld a wide vari­ety of con­gres­sion­al Acts reg­u­lat­ing intrastate eco­nom­ic activ­i­ty that sub­stan­tial­ly affect­ed inter­state com­merce, the pos­ses­sion of a gun in a local school zone is in no sense an eco­nom­ic activ­i­ty that might, through rep­e­ti­tion else­where, have such a sub­stan­tial effect on inter­state commerce.

Mor­ri­son expand­ed that log­ic. The pre­vail­ing view seems to be that the courts had been accept­ing any com­mer­cial impact as jus­ti­fi­ca­tion for fed­er­al action, but Lopez and Mor­ri­son were a shot across the bow, a warn­ing that Con­gress bet­ter make bet­ter expla­na­tions. (The Gun-Free Schools Act was amend­ed to require that the offend­ing gun must have moved in or affect­ed inter­state commerce.)

Which brings us, at long last, to the Endan­gered Species Act.

ESA reg­u­lates inter­state com­merce. In par­tic­u­lar, it reg­u­lates inter­state com­merce in and relat­ed to endan­gered species (actu­al­ly endan­gered “dis­tinct pop­u­la­tion seg­ment”). It for­bids the “take” of such species, where “take” is defined as “harass, harm, pur­sue, hunt, shoot, wound, kill, trap, cap­ture, or col­lect, or to attempt to engage in any such conduct.” 

Eco­nom­ic activ­i­ty which kills, harass­es, harms, cap­tures, or col­lects endan­gered species will be large­ly inter­state. That is, an eco­nom­ic devel­op­ment in one state will have obvi­ous and imme­di­ate effects on inter­state com­merce tak­en broad­ly. Fur­ther, indi­vid­ual species which do not cross state lines nonethe­less inter­act with the nat­ur­al world and have effects which do cross state lines. It is this “web of life” argu­ment which has tra­di­tion­al­ly been used to pro­tect ESA.

By nar­row­ing that read­ing of the Com­merce Clause (and com­mon law tra­di­tion that wildlife is owned by the gov­ern­ment), judi­cial extrem­ists would destroy endan­gered species pro­tec­tions, as well as clean air and clean water laws. A wide range of laws we take for grant­ed, includ­ing min­i­mum wage laws, are jus­ti­fied by sim­i­lar argu­ments about net eco­nom­ic effect. By estab­lish­ing a prece­dent on a more con­tro­ver­sial law, like ESA, the extrem­ists would gain a beach­head from which to strike at more pop­u­lar laws which also don’t fit with­in the “Con­sti­tu­tion in Exile” that the imag­ine hid­ing out at sea, or per­haps in Mexico.

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