News Release--NFIB, Chamber ask for full 10th Circuit to examine Commerce Clause decision
FOR IMMEDIATE RELEASE
Contact: Karen Harned, Executive Director, NFIB Legal Center, [email protected]
or Luke Wake, NFIB Senior Staff Attorney, [email protected]
SALT LAKE CITY, Utah, May 23, 2017— Two of the nation’s top business associations filed an amicus brief, yesterday, urging the United States Court of Appeals for the Tenth Circuit, in Denver, to grant en banc review of a three-judge panel decision upholding Endangered Species Act regulation of the Utah Prairie Dog, which they argue has no connection to interstate commerce.
“This is yet another example of the federal government reaching beyond what the Constitution allows,” said Karen Harned, executive director of the Small Business Legal Center at the National Federation of Independent Business, which together with the U.S. Chamber of Commerce, filed a brief in yesterday’s appeal.
“The Utah Prairie Dog is found only in Utah and has absolutely no connection at all to interstate commerce, which means that there is no legitimate basis for the federal government to regulate under the Commerce Clause. Unfortunately, the Tenth Circuit’s initial decision was premised on a radically expansive view of the federal commerce power—which is entirely at odds with precedent.”
Historically, courts interpreted the Commerce Clause as authorizing regulation only of goods or services that crossed state lines; however, that changed with the New Deal-era decision in Wickard v. Fullburn. In that case, the Supreme Court upheld the federal government’s power to regulate a farmer’s decision to grow wheat only for his family and not for sale. In turn, that decision paved the way for the modern federal regulatory state, which invades even matters traditionally thought to be of local concern.
“The Wickard decision enabled the federal government to reach much further into our everyday lives than the Founding Fathers ever intended. But since the 1990s the Supreme Court has repeatedly affirmed that there are limits on federal power. Specifically, there must be a real connection to interstate commerce to justify federal regulation. But the Tenth Circuit’s decision, in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Services, suggests that there are no limits. This decision deserves further review because it holds that Congress can regulate anything it likes under an expansive regulatory regime, as long as some of what it regulates is connected to national commerce.” said Harned.
NFIB was the named plaintiff in the famous NFIB v. Sebelius case challenging the constitutionality of the Affordable Care Act’s individual mandate to purchase health insurance. In that case, the U.S. Supreme Court reaffirmed the limits of federal power in holding that Congress could not affirmatively force citizens to buy a product or service under the Commerce Clause.
Further background information can be found on this story here: Are There Limits to Federal Power? The motion for a rehearing can be read here and the amicus brief here.
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The NFIB Small Business Legal Center is a 501(c)(3) organization created to protect the rights of America’s small business owners by providing advisory material on legal issues and by ensuring that the voice of small business is heard in the nation’s courts. The National Federation of Independent Business is the nation’s leading small-business association, with offices in Washington, D.C. and all 50 state capitals. For more than 70 years, the National Federation of Independent Business has been the Voice of Small Business, taking the message from Main Street to the halls of Congress and all 50 state legislatures. NFIB annually surveys its members on state and federal issues vital to their survival as America’s economic engine and biggest creator of jobs. NFIB’s educational mission is to remind policymakers that small businesses are not smaller versions of bigger businesses; they have very different challenges and priorities.
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