The Endangered Species & Wetlands Report has obtained the recording of the Monday’s oral argument in the Utah prairie dog case. As you’ll recall, this is the constitutional challenge to the federal government’s authority to regulate any activity that affects any living thing under the Commerce Clause. As we argue, the Commerce Clause isn’t an open-ended grant for the federal government to regulate whatever it wants. Late last year, the district court agreed, holding that the regulation exceeds the federal government’s constitutional power.
As the Supreme Court has held, the Commerce Clause authorizes the federal government to regulate economic activities that substantially affect interstate commerce. That’s not what the government is doing in the Utah prairie dog case. Instead, its asserting the power to regulate any human activity — regardless of its nature — if it affects a single prairie dog, a species found only in Utah with no appreciable tie to interstate commerce.
The government claims that it can regulate this activity because, as a species, the Utah prairie dog affects the environment, which in turn affects the economy. True though that may be, this argument would be a shocking expansion of the Commerce Clause power. For instance, humans obviously have significant impacts on the environment too. Under the government’s theory, it could regulate any activity that affects a single person, contrary to several Supreme Court decisions.
You can listen to the full argument here.