Commerce Clause

  • September 25, 2015
    Guest Post

    by Jason Rylander, Senior Staff Attorney, Defenders of Wildlife

    On September 28, the U.S. Court of Appeals for the Tenth Circuit will hear arguments in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, a case that will test whether the Federal government can protect the Utah prairie dog under the Endangered Species Act (ESA).  This case is not just about one species – it is a test of federalism itself – and its outcome could have broad implications for wildlife and environmental protection.

    Representing PETPO, the Pacific Legal Foundation has argued that the Constitution’s Commerce Clause does not give the federal government the authority to protect Utah prairie dogs. They say that because the species lives in just one state and arguably has no commercial value only the state government has the right to manage it.

    These are radical ideas. Every single court to consider the question – including the Fourth, Fifth, Ninth, Eleventh, and D.C. Circuits – has upheld the federal government’s constitutional authority to protect wildlife through the ESA. But last year, District Court Judge Dee Benson of Utah disagreed, and so the Tenth Circuit will weigh in on what had, until now, been settled law. As I argued in an amicus brief for Defenders of Wildlife and five other national conservation groups, the Tenth Circuit should reverse.

  • September 24, 2015
    Guest Post

    by Bruce Myers & Jay Austin, Senior Attorneys, Environmental Law Institute

    To date, a wolf, a toad, two fish, a fly, and a collection of “cave bugs” have successfully carried the banner of the Endangered Species Act (ESA) against a series of constitutional challenges. On Monday, the Tenth Circuit will hear oral arguments in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service—yes, you read that name correctly—on whether the Act is unconstitutional as applied to the endangered Utah prairie dog. PETPO has implications for nearly every federal environmental law, and for other laws enacted on the basis of Congress’ authority to pass legislation that is necessary and proper for regulating interstate commerce.

    As Professor David Driesen documented in earlier posts (here and here), PETPO asks whether the Fish & Wildlife Service can protect this prairie dog if it neither crosses state lines nor has obvious economic value. A federal district judge in Utah thought not, triggering this appeal. Now, the court must decide whether this unassuming rodent stands entirely outside Congress’ constitutional authority to regulate activities that, in the aggregate, “substantially affect” interstate commerce (as the Supreme Court characterized this aspect of the commerce power in its 2005 medical marijuana ruling, Gonzales v. Raich).

    This is not property-rights advocates’ first whack at the ESA, nor the first time a federal court has considered the constitutionality of protecting intrastate or highly localized species under it. From 1997 to 2011, six appellate cases spanning five circuits rejected similar challenges. These rulings feature a rogues’ gallery of species that are mostly uncharismatic and lack evident commercial value: the Delhi Sands Flower-Loving Fly, California delta smelt, arroyo southwestern toad, Alabama sturgeon, red wolf, and various subterranean cave-dwelling invertebrates.

  • April 2, 2012

    by Jeremy Leaming

    A Supreme Court opinion striking health care reform would be indefensible and widely perceived as political said former Solicitor General Walter Dellinger at a recent ACS briefing on last week’s oral arguments in HHS v. Florida.

    Dellinger’s sentiment is echoed in an editorial from The New York Times, which said the oral arguments in the health care reform case should put to rest the widely held belief that “legal conservatives are dedicated to judicial restraint ….” For the Roberts Court, The Times continued, has proven to be a judicial entity ready to “replace law made by Congress with law made by justices.”

    The Times’ editorial continued, “Established precedents support broad authority for Congress to regulate national commerce, and the health care market is unquestionably national in scope. Yet to Justice Kennedy the mandate requiring most Americans to obtain health insurance represents ‘a step beyond what our cases have allowed, the affirmative duty to act, to go into commerce.’ To Justice Breyer, it’s clear that ‘if there are substantial effects on interstate commerce, Congress can act.’”

    President Obama fielding questions from reporters following a news conference with Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon, issued concern about a high court opinion invalidating the Affordable Care Act, Politico reported.

    “I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint,” Obama said. “That a group of people would somehow overturn a duly constituted and passed law. Well, this a good example. And I’m pretty confident that this court will recognize that and not take that step.”

    The president said his confidence was based on “precedent out there. That’s not just my opinion, by the way. That’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices who said this wasn’t even a close call.”

  • March 22, 2012

    by Jeremy Leaming

    Someday soon, perhaps not soon enough, the fear mongering over the landmark health care reform law, the Affordable Care Act, will be relegated to the dustbins of history.

    The scare tactics we’ve lived with for what feels like a decade – the ACA’s minimum coverage provision, requiring Americans who can afford to do so to start paying for a minimum amount of health care coverage in 2014 is an unprecedented expansion of congressional power and a dire threat to liberty as we know it – are getting even louder as oral argument in the case approaches.

    The usual suspects, Fox News and rightwing radio host Rush Limbaugh have been the ringleaders of sloppy reasoning and fear mongering, as Media Matters’ David Lyle notes in cogent fashion.

    Lyle’s piece documents the shrill arguments – you’ve heard them – if Congress can force us to purchase a minimum amount of health care coverage, then surely it'll pass laws soon to force us to purchase gym memberships, organic foods, and American automobiles.

    But Lyle notes this “slippery slope argument turns out, however, to be too slippery by half, and it gets both the Constitution and the facts of the health care marketplace wrong.”

    On a Feb. broadcast, Limbaugh suggested once people are required to purchase a minimum amount of health care coverage, then what can stop the government from “making us buy a stupid electric car.” Lyle cites a slew of other examples peddling the slippery slope scare tactic.

    But Lyle notes, what others have before “legal and health policy experts have explained, contrary to the right-wing’s ‘broccoli mandate’ talking point, the Affordable Care Act appropriately addresses failures in the health insurance market using the broad powers the Constitution gives Congress to regulate the national economy, and does not lead to the absurd results opponents have imagined.”

  • March 19, 2012

    by Jeremy Leaming

    If the Supreme Court’s conservative wing finds a way to ignore precedent and sticks together to strike the integral provision of the Obama administration’s landmark health care reform law, it will egregiously misread the Constitution, write Akhil Amar and Todd Brewster for Constitution Daily.

    The two provide reasons why striking the law's minimum coverage provision would represent such a flawed interpretation of the Constitution, which have been reiterated on this blog numerous times. And Amar has authored other articles and spoken often of the Patient Protection and Affordable Care Act and how its minimum coverage provision is constitutional. As noted by ACSblog last week, the majority of experts on the health care law believe the Supreme Court’s right-wing will not carry the day, and the law will be upheld.

    Amar and Brewster tackle two of the main arguments against the law’s minimum coverage provision, which staring in 2014 requires Americans who can afford to do so to purchase health care coverage or pay a penalty when filing their income tax returns. As Amar and Brewster note the opponents of the Affordable Care Act have attempted to make the argument that Congress with its passage of the law has taken major swipe at liberty – that is by allegedly forcing people into the health care insurance market.

    But Amar and Brewster, in accessible form, explain why the liberty argument fails – mainly because the Constitution provides Congress the powers to tax and spend, and regulate interstate commerce. The Supreme Court, moreover, has since the late 1930s, interpreted those powers to be broad ones.