Wednesday, July 20, 2005

Why is the bull's-eye on the ESA?

Both judges whose names floated around today have poor records on the Endangered Species Act. It seems like a relatively obscure law to be at the center of Constitutional battles, but it makes a lot of sense.

The Constitution gives Congress the power (in Article 1, Section 8):
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
Exactly how you interpret "commerce … among the several states" makes a huge difference. As described in Cass Sunstein's
The Second Bill of Rights: FDR'S Unfinished Revolution and Why We Need It More than Ever
, before the New Deal, the Supreme Court overturned a law which established maximum weekly hours for bakers in New York State. The Court ruled that an implicit "right to contract" existed which the state could not impose upon. This unwritten "right to contract" would balance against the Commerce Clause.

In West Coast Hotel v. Parrish, the Court ruled that:

In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. This essential limitation of liberty in general governs freedom of contract in particular.
There is a movement which believes that this ruling, and a series of others that legitimized much of the New Deal, created a "Constitution in Exile," replacing the "right to contract" with a broader understanding of the federal government's authority to regulate Commerce.

Many endangered species are of no immediate commercial value. When egrets were going extinct because of hunting for feathers, the US, Canada, Mexico, and separately with Japan, signed a treaty regulating the trade in migratory species. As a treaty, this was coequal with the Constitution, not subject to regulation under the Commerce Clause. Regulating endangered species in general gets into trickier areas.

In passing the Endangered Species Act, Congress defined "commercial activity" as

all activities of industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling: Provided, however, That it does not include exhibition of commodities by museums or similar cultural or historical organizations.
Since the New Deal, courts have been much more forgiving in terms of Congress's understanding of the limits of "commerce." This makes sense. In an interconnected world, commerce which seems restricted to one state can still affect commerce in another state. In the term that just ended, the court upheld Congress's authority to regulate commerce in marijuana grown and sold within California, and even marijuana which was grown and given away in a single state. In doing so, they upheld a 1942 precedent which insisted that a farmer who kept his whole wheat crop was still subject to Depression era market regulation.

The idea is, by keeping his excess wheat for himself (or excess marijuana, in Raich) the farmer reduced market demand–lowering prices, reduced supply of other necessary crops–increasing prices, and interfered with the federal plan to "avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce." In Raich, Stevens wrote that:

In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. In assessing the scope of Congress' Commerce Clause authority, the Court need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding.
O'Connor dissented, as did Rehnquist and Thomas. O'Connor found a technical way to separate the medical marijuana market from the recreational marijuana market, while Thomas thought big.

Thomas saw that case as an opportunity to broaden the state powers already expanded by Lopez and Morrison.

In Lopez, the Court struck down parts of the Gun-Free School Zones Act, holding that:

although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce.
Morrison expanded that logic. The prevailing view seems to be that the courts had been accepting any commercial impact as justification for federal action, but Lopez and Morrison were a shot across the bow, a warning that Congress better make better explanations. (The Gun-Free Schools Act was amended to require that the offending gun must have moved in or affected interstate commerce.)

Which brings us, at long last, to the Endangered Species Act.

ESA regulates interstate commerce. In particular, it regulates interstate commerce in and related to endangered species (actually endangered "distinct population segment"). It forbids the "take" of such species, where "take" is defined as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."

Economic activity which kills, harasses, harms, captures, or collects endangered species will be largely interstate. That is, an economic development in one state will have obvious and immediate effects on interstate commerce taken broadly. Further, individual species which do not cross state lines nonetheless interact with the natural world and have effects which do cross state lines. It is this "web of life" argument which has traditionally been used to protect ESA.

By narrowing that reading of the Commerce Clause (and common law tradition that wildlife is owned by the government), judicial extremists would destroy endangered species protections, as well as clean air and clean water laws. A wide range of laws we take for granted, including minimum wage laws, are justified by similar arguments about net economic effect. By establishing a precedent on a more controversial law, like ESA, the extremists would gain a beachhead from which to strike at more popular laws which also don't fit within the "Constitution in Exile" that the imagine hiding out at sea, or perhaps in Mexico.

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