PLF asks Supreme Court to restore constitutional limits on federal power

September 26, 2017 | By JONATHAN WOOD

Our Constitution limits the federal government’s powers to those expressly listed in the document. But the government we have today is a far cry from the limited government described by our Founding Fathers.

PLF is asking the Supreme Court to restore the Constitution’s limits by rejecting an extreme, limitless interpretation of the Commerce Clause. Representing People for the Ethical Treatment of Property Owners, we are challenging federal overreach under the Endangered Species Act.

For decades, a federal regulation kept the people of southwestern Utah from doing things that the rest of us take for granted in our own communities. They were blocked from building homes, starting small businesses, even protecting playgrounds, an airport, and the local cemetery from a disruptive, tunneling rodent – the Utah prairie dog. Moreover, the federal regulation stopped the state from pursuing the species’ recovery.

That changed in 2015 when a federal court struck down the unconstitutional regulation. Since then, Utah has worked with property owners to conserve the species by moving prairie dogs from areas that cannot provide a forever home to public conservation lands.

Utah’s conservation program worked. The two years it has been implemented have coincided with the two highest population counts for the species since surveys began in the ’70s. But the benefits of Utah’s conservation program go beyond mere numbers. The state has also funded the creation and improvement of prairie dog habitat on state lands where they can be permanently protected. Finally, real progress is being made towards the species’ long-term recovery.

This is a stark change from how things were under the federal regulation. Whereas the state enlisted property owners as partners in the prairie dog’s conservation, the federal regulation artificially pitted people against prairie dogs. The federal regulation, which forbade the “take” of any member of the species, bred lots of conflict but little conservation.

Unfortunately, Utah’s progress in recovering the species has been put in jeopardy by a decision from the Tenth Circuit overturning our win and restoring the federal regulation, which once again makes it a federal crime for state biologists to do what’s best for the species. The Tenth Circuit construed the Commerce Clause to allow federal bureaucrats to regulate activity that isn’t interstate commerce, doesn’t affect interstate commerce, and is not necessary to regulate commerce. The Tenth Circuit recognizes no limits on federal power but instead allows Congress to regulate whatever it wants for any reason.

Unless the Supreme Court overturns that decision, it will undermine the Constitution by authorizing unlimited federal power. We are optimistic that the Court will hear the case and reject this limitless theory. The Court has never allowed the Commerce Clause to be stretched so far. In two cases which it has described as the outer limits of that power, the Court upheld federal regulation of the intrastate production of a wheat and weed because denying that power would frustrate Congress’ ability to regulate the interstate markets for those commodities. The Tenth Circuit’s theory is no small step beyond the Supreme Court’s precedents, but a giant leap past anything ever previously upheld.

In the Supreme Court’s blockbuster Obamacare decision, upholding the individual mandate as a “tax” even though it isn’t, five Justices expressly rejected the Tenth Circuit’s theory of federal power. Unfortunately, Chief Justice Roberts’ decision to convert the individual mandate into a tax kept the five Justices from establishing their view as the law of the land.

This case is an ideal vehicle for the Court to reiterate that vital limit on federal power. The Utah prairie dog regulation simply has nothing to do with interstate commerce. There is no market for the species nor any economic activity involving it. Thus, the regulation cannot be justified as necessary to regulate interstate commerce. The Court should restore the state’s successful conservation program—and constitutional limits on federal power.