August 5, 2011

The gray wolf and the rule of law

By The gray wolf and the rule of law

Author:  Damien M. Schiff

This week Judge Donald Molloy of the US District Court of Montana rejected an environmentalist bid to put the gray wolf back on the ESA list.  Recall that Congress legislatively delisted the wolf earlier this year through a budget rider.  Also recall that the budget rider was precipated by an earlier Judge Molloy opinion which overturned the feds' most recent attempt to delist most of the wolf's population.

In his decision this week, Judge Molloy ruled that Congress did not usurp judicial power by legislating that the Secretary of the Interior delist the wolf "without regard to any other provision of statute or regulation that applies to issuance of such rule."  The judge ruled that such a method of delisting was constitutional but also, apparently, subversive of Western civilization.  No hyperbole here, folks:  "The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the Department of Defense and Full-Year Continuing Appropriations Act of 2011 is a tearing away, an undermining and a disrespect for the fundamental idea of the rule of law."

I can understand how reasonable minds might differ on whether (1) we should protect the wolf, (2) the wolf is endangered, (3) Congress should not legislate "surreptitiously."  But I can't quite understand how decisions pro or con on any of these points would be subversive of our system of government.  Perhaps Judge Molloy's rule of law criticism would be more apt if the Interior Secretary had acted without Congressional authorization, or if Congress had legislated retroactively; but I honestly cannot understand how one could conclude that a budget rider that delists a species that the relevant administrative agencies have already found to be recovered could be deemed "a disrespect for the fundamental idea of the rule of law."

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