The Endangered Species Act exceeds Congress’ constitutional powers

October 24, 2013 | By JONATHAN WOOD

That the federal government is limited to exercising only those powers granted to it in the Constitution is a bedrock principle of constitutional law. If the courts are going to faithfully execute their obligation to defend this principle, they will have to wrestle with the constitutionality of the Endangered Species Act’s “take” prohibition. This sweeping provision forbids any action which results in any harm to a protected species, backed up by the threat of fines and imprisonment. The purported authority for this broad assertion of power is the Commerce Clause, which authorizes Congress to “regulate Commerce … among several states.” But if this clause authorizes the take prohibition, it would eviscerate the enumerated powers principle because it would also authorize regulation of any other activities. That’s why PLF is challenging the federal government’s authority to apply this provision to residents of southwestern Utah suffering from an infestation of Utah prairie dogs—a species listed as “threatened” under the ESA.

Although treated as a mere shibboleth by the academy and the courts for much of the twentieth century, the Supreme Court has begun to take its obligation to enforce the doctrine of limited and enumerated powers more seriously over the last two decades. This constitutional revival began in 1995 when the Court declared a statute unconstitutional because it exceeded the bounds of the Commerce Clause for the first time in nearly 60 years.  In United States v. Lopez, the Court declared that Congress could not regulate the mere possession of a gun near a school as commerce. Subsequently, the Court relied on this case to invalidate a statutory provision concerning gender-based violence as beyond Congress’ power to regulate commerce. Last term the Court had to adopt a “saving construction” of Obamacare’s individual mandate to avoid also declaring it unconstitutional under the Commerce Clause. According to these precedents, the Commerce Clause authorizes the regulation of economic activity which has a substantial effect on interstate commerce but not isolated and non-economic activities affecting a single state. As painfully obvious as this conclusion may seem to the lay person, it is quite controversial in the legal world and within the federal government.

Relying on these cases, PLF is defending the rights of ordinary citizens to be free of unconstitutional aspects of the ESA. In Cedar City, Utah, residents are suffering the loss of their constitutional rights, their private property, and—perhaps most distressingly—the disruption of their loved ones’ final resting place. The city is overrun with Utah prairie dogs, a species that is subject to the federal take prohibition despite existing only in Utah and having nothing to do with commerce. To address the prairie dog problem, these residents formed People for the Ethical Treatment of Property Owners, a non-profit group that gives voice to those who are denied the right to build their dream homes, build small businesses, or protect their loved ones’ grave sites from this rodent. You can hear their story in our case video:


Because the ESA’s take prohibition, as applied to species like the Utah prairie dog, regulates a host of non-economic activities having no substantial effect on interstate commerce—including driving or walking, should any of the prohibited effects on an endangered species occur—it exceeds the federal government’s powers. Therefore, the federal government is unconstitutionally restricting the liberty of the residents of Cedar City and similar communities across the country.