Is it the Commerce Clause or the Future Commerce Clause?

June 01, 2015 | By WENCONG FA

The Utah prairie dog regulation prohibits the “take” (harassing, hunting, etc.) of prairie dogs on private land. The federal government, which has only the enumerated powers granted to it by the Constitution, says it can regulate purely intrastate species like prairie dogs under its power to regulate interstate commerce. The People for the Ethical Treatment of Property Owners (PETPO) disagreed, and with the help of PLF, achieved a significant victory in federal district court.

The government appealed the district court’s decision, and argues that “[t]he commerce power includes the power to protect potential future value.” That can’t be right. The Supreme Court has repeatedly stressed the need for a “limit to the federal power.” That’s why the Commerce Clause isn’t the “Hey, you-can-do-whatever-you-feel-like Clause.”

If the federal government could regulate any activity that affects any object which could be an object of commerce at some point in the future, then it could regulate anything. It could certainly regulate gun possession in school zones. After all, today’s owner might be tomorrow’s seller. But the Court has already rejected that argument in Lopez. The government would also be able to force people to buy health insurance under its “potential future value” theory. There’s certainly a chance that health insurance might save you money at some point in the future. But the Court rejected this argument in NFIB v. Sebelius. As these cases show, when constitutional limits to government power are at stake, a Minority Report approach to the Commerce Clause (regulate it now because it might be in commerce tomorrow) simply will not do.

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Also, don’t forget about our big event in D.C. tomorrow on the constitutional limits of the Endangered Species Act. The event is co-sponsored by PLF and the Competitive Enterprise Institute and features our own Jonathan Wood, along with Senator Mike Lee and Congressman Rob Bishop of Utah. You can RSVP by emailing Kate Pomeroy at ">.