People for the Ethical Treatment of Property Owners

Date: November 03, 2017

NFIB Small Business Legal Center recently urged the Supreme Court to take-up an important case about a prairie dog. But what does the Utah Prairie Dog have to do with small business? And why are these Prairie Dogs at the center of a national controversy?

First, the Utah Prairie Dog has absolutely no commercial value. Historically no one has sought their pelts, or had any other use for them whatsoever. That means that the Prairie Dog has nothing to do with small business and nothing to do with interstate commerce. So why then does the federal government regulate lands with Prairie Dog habitat under its Commerce Clause powers?

The Commerce Clause authorizes federal regulation only for conduct that may affect “interstate commerce.” Of course, legal scholars have long disputed how far federal regulation should be allowed to reach. But even under the most expansive interpretations, the Supreme Court has always said that the hook for federal regulation must be that, in the aggregate, regulated conduct may have a meaningful impact on national commerce. As such, the question raised in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Services is whether the Commerce Clause authorizes regulation of lands containing habitat for a species that is: (a) found only within the confines of a single state; and (b) for which there is literally no commercial use or value?

While numerous federal courts of appeal have upheld this sort of regulation under the Endangered Species Act, the courts have been deeply splintered in their rationales. But no decision to date has been as wild as the Tenth Circuit’s decision upholding ESA regulation of the Utah Prairie Dog. In the proceedings below, a District Court judge ruled that it was beyond the power of the federal government to regulate lands containing the Utah Prairie Dog. But the Tenth Circuit reversed—holding that regulation of purely intra-state, non-economic, conduct is justified here because other provisions of the ESA affect interstate conduct.

In the words of Jonathan Wood of the Pacific Legal Foundation, Tenth Circuit ruled “that the federal government can regulate anything for any reason so long as it also regulates a lot of other stuff as part of one big ‘comprehensive regulatory scheme.’” But as we argue to the Supreme Court in our brief supporting certiorari, that rationale flatly conflicts with the Supreme Court’s decision in National Federation of Independent Business v. Sebelius. Obviously most of the Affordable Care Act was focused on regulation of interstate commerce. Nonetheless, the Court ruled that a specific provision within the Act was beyond the Commerce Clause power. Regardless of how important the Individual Mandate was to the Act as a whole, five of Justices of the Court agreed that Congress lacked power to compel individuals to purchase health insurance under the Commerce Clause. (We all know the Individual Mandate survived, but only [supposedly] a legitimate act under the taxing power).

But the Tenth Circuit’s decision below would uphold literally any act of federal regulation. Indeed, it is difficult to envision any statute that would not contain at least some provisions affecting interstate commerce, which would [under the Tenth Circuit’s extreme rationale] sweep-up other provisions that could not otherwise be justified under the Commerce Clause. But of course, that approach fundamentally conflicts with the narrow provision-specific analysis that the Supreme Court has employed in Commerce Clause cases from Wickard v. Filburn and Gonzales v. Raich to United States v. Lopez and United States v. Morrison. As such, we must hope that the Supreme Court will take this case to set things straight.

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