Endangered species

Does the Commerce Clause Empower Congress to Regulate Every Living Thing?

A potential Supreme Court case challenges federal protection of an intrastate species with no commercial value.

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National Park Service

According to a Supreme Court brief filed today, Utah prairie dogs "produce nothing of importance except the annoyance of the surrounding population," and "they make terrible pets." The brief, which urges the Court to hear a constitutional challenge to a federal regulation protecting the rodents, concedes that they are "adorable little critters" but notes that "the protection of cuteness is not a congressional power" granted by the Constitution.

The brief, filed by the Cato Institute, the Reason Foundation (which publishes this blog), and the Individual Rights Foundation, asks the Supreme Court to overturn a March 2017 ruling upholding the U.S. Fish and Wildlife Service's decision to list Utah prairie dogs as a "threatened" species. That designation makes it a federal crime to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" animals on the list. In rejecting a challenge to the listing by People for the Ethical Treatment of Property Owners, the U.S. Court of Appeals for the 10th Circuit relied on an alarmingly broad understanding of the congressional power to regulate interstate commerce.

"The government seeks to protect an abundant, commercially irrelevant, and wholly intrastate rodent without regard for whether such regulation has any connection to economic activity, let alone commerce among the several states," says the Cato/Reason/IRF brief. "The Utah prairie dog is not a marketable commodity. There is no illicit trade in prairie dog horns or hides for the government to suppress. They carry no firearms into school zones. Their domestic relations are none of the government's business. Finally, they have neither purchased health insurance nor plan to do so in future." Those are references to Supreme Court cases in which the government claimed (mostly without success) that a federal law was constitutional because the activity it regulated had a "substantial effect" on interstate commerce.

Although Utah prairie dogs have no commercial value and live only in the southwestern part of that state, the 10th Circuit reasoned that the power to protect them is a crucial part of a broader regulatory scheme. A similar argument was the basis for Gonzales v. Raich, the 2005 case in which the Supreme Court upheld the federal power to criminalize production and possession of homegrown medical marijuana. But unlike marijuana, Cato et al. note, Utah prairie dogs are not a fungible commodity, and their status has nothing to do with that of other animals protected by the Endangered Species Act. Contrary to what the appeals court implies, the brief says, it is obviously not true that "removal of the prairie dog from federal jurisdiction will render the government impotent to bar trafficking in eagle feathers."

If any species are subject to congressional regulation, the appeals court implies, all of them are. "The Tenth Circuit's reasoning would apply to all animals, meaning that a general jurisdiction over all wildlife is hidden in the Commerce Clause," the brief says. "Congress, it is said, does not 'hide elephants in mouseholes,' but apparently the Constitution hides all animals in the nation in a prairie dog hole? Moreover, because the ESA isn't limited to animals but includes plants too, Congress apparently has the power to oversee all living organisms because some living organisms may have a substantial effect on interstate commerce."

The 10th Circuit also suggested that Congress can justify its own power grabs by citing their economic impact. "The Constitution does not work on rewind," Cato et al. say. "Congress may not create an economic effect in order to regulate it, for the same reason it may not invade a country to declare war….If the effects of Congress's own laws can create the jurisdictional hook for Commerce Clause regulation, then Congress is the progenitor of its own power."

Utah prairie dogs, by the way, are doing just fine. The Fish and Wildlife Service considers them threatened only because the animals live mostly on private property. "While 70 percent of the population resides on private land, the government counts only the federal-land population on the theory that bloodthirsty Utahns would butcher privately domiciled prairie dogs if the species were delisted," Cato et al. say. "Thus this non-endangered 'threatened' species is listed on a theory that, if taken to its logical conclusion, would place all organic life in the United States into congressional jurisdiction because some conjectural private party might impose some vaguely defined harm at some hypothetical date in the future."

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  1. The power to regulate every living thing is an emanation (or is it a penumbra?) of the Fuck You, That’s Why clause, which isn’t actually written in the Constitution because fuck you, that’s why.

    1. FYTW is the new Catch-22. It doesn’t have to be written down to exist and it applies everywhere.

      1. Streelight Manifesto is the new Catch-22 and even they are old now.

        1. I have no idea what that means.

          1. It means BUCS has at least one Operation Ivy Ska Man tattoo that he sort of regrets getting but also sort of doesn’t.

  2. That brief is a delightful read.

      1. You got the ones with the superhero comics printed on them? That’s old school.

      2. No one is interested in your brown hieroglyphs, Paul.

    1. maybe a flea that lives on the back of the Utah prairie dog

      lol!

    2. The first line, “In no Commerce Clause case has this Court considered anything so worthless.” Precisely defines the sum total of the majority of the high court’s output since the 1960’s.

  3. People for the Ethical Treatment of Property Owners

    That’s a wonderful name.

    1. I smiled. Someone needs to buy whomever came up with that a drink.

      1. I came up with it.

        Pay up, motherfug.

        1. Scooby Doo underroos or gtfo.

          1. Rooby Rooby Ridge!

  4. Federal Lawyer: We think this law is just because we want it to be!

    Supreme Court Judge: Hmm, compelling argument. I’m sure I can write a few thousand words on why I side with you.

    Private Lawyer: But it not only doesn’t make any sense, it’s against the Constitution.

    Supreme Court Judge: LoL!

  5. The Fish and Wildlife Service considers them threatened only because the animals live mostly on private property. “While 70 percent of the population resides on private land, the government counts only the federal-land population on the theory that bloodthirsty Utahns would butcher privately domiciled prairie dogs if the species were delisted,” Cato et al. say.

    Those are some canny prairie dogs, considering that the Feds own 66.5% of the land in Utah.

    1. Isn’t most of that made up of lifeless salt pans and rocks?

      1. Those are the state animal and bird of Utah, respectively.

        1. I thought the state animal of Utah was the brine shrimp.

      2. Utah is so terrible no one actually wanted to steal it from the Mormons, and after being kicked out of pretty much all other places one assumes they don’t really like it there but they understand that leaving might expose some of their more bizarre beliefs.

        Still waiting on why polygamous marriage is verboten in the United States though. Pretty sure it would be legal in Utah if they were able to choose for themselves.

        1. I’m pretty sure the reason it’s forbidden is because Mormons were into it.

          1. Now all they have left is ice cream.

          2. Hm… In a quick search, I found references to bigamy laws in the states dating to “mid 19th century” (so 1800s). So it’s possible that such laws are mostly a reaction to early Mormons, but they seem too pervasive for that to be the entire answer.

            That said, Mormon polygamy was a serious enough issue in 1896 that a abandoning the practice was one of the conditions of Utah’s statehood.

            So… /Shrug

      3. A common misconception is that UTAH is devoid of both human and animal life. False.

        We live here. Like stars in the sky, the closer you look the more people and animals there are.

      4. A common misconception is that UTAH is devoid of both human and animal life. False.

        We live here. Like stars in the sky, the closer you look the more people and animals there are.

      5. Don’t forget practitioners of the Mormon religion. . .and wonderful people like Warren Jeffs.

    2. 70% live on private property? But were they invited?

    3. I actually find that fairly compelling since pretty much everything on private land seems to be more and more threatened.

  6. The Fish and Wildlife Service considers them threatened only because the animals live mostly on private property. “While 70 percent of the population resides on private land, the government counts only the federal-land population

    By that logic, they ought to be listing virtually every species endemic to the eastern half of the US as threatened given that 85-95% of land east of the Colorado/Kansas border is private.

    It would be amusing to have to listen to arguments that the overpopulated white tailed deer is threatened.

    1. Don’t give them any ideas, dude! The annual war to keep the raccoons out of my attic is about to commence.

      1. Just have them fight it out with your cats. Give your dog a little deserved vacation from the constant feline terror.

        1. A couple of pet Cougars are helpful for controlling prairie dogs, raccoons and the errant Mormons that make it to your front door. . .

        2. A couple of pet Cougars are helpful for controlling prairie dogs, raccoons and the errant Mormons that make it to your front door. . .

        3. A couple of pet Cougars are helpful for controlling prairie dogs, raccoons and the errant Mormons that make it to your front door. . .

    2. Need more wolves.

  7. I read the brief. Very nice.

    1. Like with the prairie dog, cuteness doesn’t count. And the brief risks being too cute, not that I don’t fully appreciate the veiled snark; I don’t imagine some of the justices will appreciate the tweaking of their rarified schnozes.

  8. Congress, it is said, does not ‘hide elephants in mouseholes,’

    It is said by whom? Of course they do. All the time.

    1. It does, however, hide mice in elephant holes.

  9. Its pretty clear that any “interpreted” enumerated power that violates the Bill of Rights is wrong.

    Government bureaucrats and politicians say that the Commerce Clause can be used to force everyone to buy health insurance but violates the 1st Amendment to freedom of association and religion. The interpretation is wrong.

    What’s the next wrong interpretation of government duties?

  10. The Fish and Wildlife Service considers them threatened only because the animals live mostly on private property.

    Way to bury the lede.

  11. I always knew that deep down libertarians wanted genocide for those they deem “nonproductive.”

    1. Not wanting government tyranny is genocide.

      Lefties really believe this!

    2. Of course you would equate limiting the Commerce Clause to its actual meaning with “genocide”.

    3. Eh, it’s not that they *want* genocide, it’s that genocide is acceptable collateral damage.

    4. Just like they prairie dog they lay waste to the countryside.

  12. From the book of Genesis in the Christian Bible:
    Then God said, “Let us make mankind in our image, in our likeness, so that they may rule over the fish in the sea and the birds in the sky, over the livestock and all the wild animals, and over all the creatures that move along the ground.”

    So any government action or agency that does any of that is a violation of the separation of church and state letter, and unconstitutional.

    Out with the EPA, out with the Fish and Game guys, out with the Department of the Interior.

    Hey, maybe the budget just got balanced a little bit.

    1. Hmm. That’s a novel way to interpret the establishment clause.

  13. “Does the Commerce Clause Empower Congress to Regulate Every Living Thing?”

    There isn’t anything we do–or don’t do–that doesn’t adversely impact interstate commerce in some way. If regulating every living thing (or not) has a secondary impact on anyone in any way, then I don’t see why they would overturn the status quo.

    Was it Mills who said we should be free to do whatever we want so long as it doesn’t harm anyone else? That’s so dangerous because it’s so close to getting it right*.

    We should be free to harm other people so long as we don’t violate their right to make choices for themselves. Neither I nor my rights exist for your benefit. Your rights don’t exist for my benefit either. They’re there so you can make choices for yourself–not me. Why should you have to ask me for permission to NOT violate my rights?

    You should be free to open a pizza shop next to mine with better pizza, better service, and lower prices–so that you drive me out of business, I lose my home, my wife leaves me, and takes the kids . . . just so long as you don’t violate my rights.

    If we ever see Wickard v. Filburn overturned, it’ll only be after the idea that people should be free to harm each other grows to permeate the wider culture. As it stands now, progressives don’t even want to let people harm themselves with sugary soft drinks.

    *There is a place where people aren’t allowed to do anything if it’s harmful to society. It’s called “North Korea”.

    1. Was it Mills who said we should be free to do whatever we want so long as it doesn’t harm anyone else? That’s so dangerous because it’s so close to getting it right*.

      We should be free to harm other people so long as we don’t violate their right to make choices for themselves.

      It bears repeating.

      “No harm” = license for totalitarianism

    2. Was it Mills who said we should be free to do whatever we want so long as it doesn’t harm anyone else? That’s so dangerous because it’s so close to getting it right*.

      We should be free to harm other people so long as we don’t violate their right to make choices for themselves.

      It bears repeating.

      “No harm” = license for totalitarianism

  14. Utah is the most beautiful state I’ve seen outside of Virginia’s Shenandoah Valley, where I went to school.

    I’d put the area around Puget Sound up there over Utah, with its snow capped mountains and cedar forests running all the way down to the sea, but I’ve only seen Puget Sound in summer. Utah is amazing all year ’round. I’ll put it this way, I wouldn’t care if I never got to go back to Yosemite so long as I could still go to Zion. It’s like that.

    It isn’t just Zion either, and, no, I’m not just talking about the Ski areas around Park City (though that’s awesome).

    I love the Southern part of the state–the area going from east of Zion, past Bryce, Staircase, and through Canyon Lands, into Moab. Offroading in Moab is the bomb. Riding it on a dirt bike is (the bomb)^2. Riding those twisty mountain roads on a sport bike in lower Utah at high speed is almost as good as the Sierras, but not quite.

    Anyway, it’s my understanding that prairie dogs are a menace to horses and cows. They get their foot stuck in a hole and break it, and there goes your horse or cow.

    1. Anyway, it’s my understanding that prairie dogs are a menace to horses and cows. They get their foot stuck in a hole and break it, and there goes your horse or cow.

      There you go! Prairie dogs affect interstate commerce!

      Bring on the regulations!

  15. Gonzales v. Raich basically held that even though the pot wasn’t sold in interstate commerce, if it were it would be, and hence the withholding of it from interstate sale *affected* interstate commerce, and therefore could be regulated.

    Butterfly wings, and all that.

    Don’t some people buy guns and traps to shoot the little critters? Sounds like interstate commerce to me.

    And whatever they eat, whatever time people spend looking at them, was resource that *could have been* on interstate commerce, but wasn’t.

    The current state of the law since Gonzales v. Raich is that the feds can regulate your naps on sunday afternoon because you *could have instead* been participating in interstate commerce, hence your choice to nap affected interstate commerce.

    1. Gonzales v. Raich basically held that even though the pot wasn’t sold in interstate commerce, if it were it would be, and hence the withholding of it from interstate sale *affected* interstate commerce, and therefore could be regulated.

      Why didn’t they use this logic in Lopez?

  16. Why just wild animals too? Domesticated cats & dogs next!

    CA passed a law that pet shops must ONLY sell rescues & pound-puppies.

    Just shut up, lie back and enjoy it….

  17. Most frightening is the vast expansion of the lands affected by ESA listing.

    Before Obama, if your land had ESA listed animals, you would be hit with such horrific regulations that you might as well hand your deed over to a eco foundation, becuase you were out of business.

    Under Obama, the land affected by ESA regulations is not just where the listed aniimal is, but all similar land or….hold on to your hat…. where they might live if the climate changes — called “potential future habitat.”

    Considering that eco-extremists have pushed, pretty successfully, to double the species on the list, and to regulate everywhere that they might live now or in the future, that incompasses pretty much everywhere.

    Expansion of the ESA list and gross expansion of lands regulated is part of the Eco-extremists efforts to clear the rural west of all human beings.

  18. Does the Commerce Clause Empower Congress to Regulate Every Living Thing?

    Everything, living or not.

  19. The brain damaged vegans will next claim cows, pigs, and chickens are “endangered” species.

    1. Obviously, the danger to those species is Humans, so we should… uh-oh…

  20. I hope this idea never spreads to Canada. Shooting gophers is Canada’s No. 2 sport behind hockey.
    People raised on farms compare their ”highest number of kills in a day” like firefighters and cops compare dick sizes.

  21. Prairie dogs have already been wiped out of over 95% of their natural range. If this weren’t the case there wouldn’t be a problem. It’s sad to have to justify the existence of a communal animal found to possess complex language skills but if it must be we might say prairie dogs are the property of everyone and shooting or poisoning something that could be a source of tourism, photography, etc. for its lifetime is depriving the public at large of property and revenue. Of course there will be those who disagree. A problem with freedom is most people feel free to be assholes.

    1. Buy some land, import prairie dogs, make it a tourist trap and make a fortune….

  22. Egads, and to think I shot poor innocent unarmed little New Mexican prairie dogs back in the 1970’s as varmints.

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