Disappointingly, this week the Supreme Court denied certiorari in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Services. Of course, that’s not all that surprising, given the superbly low odds of certiorari, and the fact that the Tenth Circuit’s decision confirmed a point of law that numerous other court of appeals had previously decided. On the one hand, this is just the latest in a string of decisions from across the country holding that the federal government may impose stringent Endangered Species Act (ESA) regulations on species found only within the confines of a single state. But, we have argued that many of those decisions conflict with the Supreme Court’s opinions in United States v. Lopez and United States v. Morrison because it is beyond the Commerce Clause power of Congress to regulate non-commercial activities—at least where, as in these cases, there is no real connection to interstate commerce. But this case was different for two reasons: (1) the district court initially ruled that, as applied to the Utah Prairie Dog, ESA regulations are unconstitutional; and (2) in reversing the district court’s decision, the Tenth Circuit suggested that there are no real limits to the federal government’s Commerce Clause powers.
So, while this represents the end of the road for the “PETPO” case, these Commerce Clause questions will persist. The Tenth Circuit’s decision is especially troublesome because it suggests that it is within Congress’ Commerce Clause power to regulate literally anything, so long as it is included within a broader statute regulating economic conduct in other provisions—a rationale that squarely conflicts with the Supreme Court’s decision (in NFIB v. Sebelius) that it is beyond the power of Congress to compel individuals to buy a service or product, even within the context of a sweeping reform of the health care industry. But we will have to wait to see whether other courts embrace this unbounding view of the federal Commerce Clause power in the future.
In any event, this case underscores how much work we have left to accomplish if we are to restore and revitalize federalism in our constitutional jurisprudence. But, Amy Coney Barrett (now a judge on the Seventh Circuit Court of Appeals) offers some insightful thoughts and perspective on this problem in her scholarship. In “Congressional Originalism,” Barrett confronts the question of what originalists (i.e., those of us who believe the Constitution should be interpreted according to its original meaning) should do when confronted with non-originalist precedent—such as the New Deal era Commerce Clause decisions that so radically expanded the reach of the federal government. Her answer is that: “The Constitution does not require the Supreme Court to correct every constitutional error… It permits errors to exist until an institution in a position to do so–the Court, Congress, or the President–decides that it is an opportune time to correct them…” And to be sure, in denying certiorari the Supreme Court’s decision in PETPO signals that the Court is not prepared to take even modest steps to impose meaningful limitations on the Commerce Clause power at this time. Yet, we can and will continue to urge the Supreme Court to revisit wrongly decided past precedent—and, just as vitally, to reinforce its correctly decided decisions where abrogated by the lower courts.
For now, the error on the field stands. But as Barrett suggests, other branches of government can remedy the situation. To start, Congress could amend the ESA to limit federal regulation to species that cross state-lines (or at least to species that have had some historic commercial value). The Trump Administration, already focused on deregulation, may winnow ESA regulation in a manner that alleviates some of these constitutional concerns. Such rulemaking would undoubtedly spur lawsuits, but that might prompt the Supreme Court to decide the issue it left unanswered in PETPO.
Alternatively, the Administration could take more modest steps to limit the most unreasonable aspects of current ESA regulation—though not necessarily curing the constitutional problems we’ve discussed here. For example, this would be a fine time for the Trump Administration to act on a still pending petition for rulemaking in which NFIB urges U.S. Fish & Wildlife Services (FWS) to lift automatic restrictions imposed on lands containing threatened species. As we’ve explained in the past, existing regulation currently imposes the very same draconian restrictions for “threatened” and “endangered” species. But, that is something the Administration could (and should) change through the notice-and-comment process because the actual text of the ESA specifies that threatened species should be regulated less stringently. More specifically, we argue in our petition that FWS should approach threatened species on a case by case basis—rather than applying one-size fits all draconian regulations.
For now, we will have to wait both for another chance to press our Commerce Clause concerns, and to see what action (if any) FWS will take on NFIB’s pending petition. But, for related reading, check-out this article by Jonathan Wood. Also, here is our brief to the Tenth Circuit in PETPO.