by David M. Driesen, University Professor, Syracuse University College of Law
On April 21, 2015, I filed an amicus brief in the U.S. Court of Appeals for the Tenth Circuit on behalf of a group of constitutional law professors defending the constitutionality of an Endangered Species Act (ESA) rule protecting the Utah prairie dog. As mentioned in a previous post, this case focuses on a federal district court ruling striking down the prairie dog rule on the ground that the rule is “non-economic” and has only a tenuous link to interstate commerce. Simply put, if the Tenth Circuit upholds this ruling, it could lead to a significantly adverse impact on the ESA, as nearly 70 percent of all protected species reside intrastate. It would further cause a split in the circuits, potentially giving rise to review by the Supreme Court.
The brief’s primary contribution to the Tenth Circuit’s deliberations involves fleshing out the concept of “economic activities” under United States v. Lopez and United States v. Morrison, and developing its implications for this case. Both of these Supreme Court cases struck down federal statutes regulating ordinary criminal activity, emphasizing that those activities were not “in any sense” economic. On the other hand, the Lopez Court reaffirmed a long line of cases upholding statutes regulating economic activities.