The "six degrees of Kevin Bacon"-ing of the Constitution

May 18, 2015 | By JONATHAN WOOD

In PLF’s ongoing challenge to the constitutionality of the federal government’s burdensome Utah prairie dog regulation, the federal government has articulated an interpretation of the Constitution that bears a striking similarity to the parlor game “six degrees of Kevin Bacon.” For those unfamiliar, this game is based on the concept that any two humans on earth are at most six acquaintance links apart.

As you may recall, the question in the Utah prairie dog case is how far the government’s Commerce Clause power reaches. This power has been interpreted to authorize federal regulation of an economic activity that has a substantial effect on interstate commerce. According to the government’s theory of the prairie dog case, it can regulate any activity that affects any Utah prairie dog because (1) affecting a single Utah prairie dog is related to the extermination of the entire species, (2) the extermination of the entire species could affect other species above and below it in the food chain, (3) the loss of multiple species could change the Utah prairie dog’s ecosystem, (4) changes to an ecosystem is related to degradation of the environment, (5) the environment — i.e. all living and nonliving things on earth — substantially affects interstate commerce. The other briefs supporting the government take a similar tact — they connect the Utah prairie dog to some exceedingly broad category, like “the environment,” “species” (i.e. all living things), or “biodiversity,” then rely on the obvious fact that the broad category has a substantial effect on interstate commerce.

There’s only one problem. The Supreme Court has made clear that the government can’t rely on this sort of attenuated reasoning under the Commerce Clause. If the government’s reasoning would justify federal regulation of all human activity — as the theory that the government can regulate any activity that affects anything that is part of the environment or the food chain (which, lest you forget, includes us) — then it must be rejected. The trial court recognized this in striking down the Utah prairie dog regulation. As it explained:

If Congress could use the Commerce Clause to regulate anything that might affect the ecosystem (to say nothing about its effect on commerce), there would be no logical stopping point to congressional power under the Commerce Clause.

Today PLF filed its brief, on behalf of our client People for the Ethical Treatment of Property Owners, defending that decision. As we explained:

The Utah prairie dog, like all species, affects its ecosystem and the environment. In the food chain, every species is predator, prey, or both. And ecosystems and the environment can, broadly speaking, affect interstate commerce. But this cannot be sufficient to bring any activity that affects the Utah prairie dog, or any other creature, within Congress’ Commerce Clause power. According to Appellants’ argument, protecting the Utah prairie dog is necessary to protect biodiversity; biodiversity is necessary for life; life is necessary for commerce. Though there admittedly would be no commerce if there were no life on Earth, this line of reasoning is too attenuated to  withstand scrutiny because it admits of no limit.

We went on to note the consequences of accepting this theory:

[H]umans substantially affect ecosystems and the environment. Under [the government’s rationale], this would mean that the federal government may regulate any activity affecting any person.

The government’s exceedingly broad theory is particularly troubling because the Utah prairie dog regulation isn’t a regulation of economic activity. This means that the regulation is more suspect under the Commerce Clause. The Utah prairie dog regulation subjects anyone who does anything that affects a single Utah prairie dog to substantial fines and even jail time. Our brief notes that there are many completely innocuous acts barred by this regulation:

It forbids, for example, exterminators from harming Utah prairie dogs for a fee. But it also applies to a rowdy child throwing a rock at a Utah prairie dog, a driver whose car strikes one scampering across a street, a homeowner moving one that had been run over in front of her house, and someone who catches one to relocate it to a conservation area.

The Commerce Clause can’t be stretched this far. Hopefully the Tenth Circuit, like the district court, will recognize the obvious truth that the Constitution only gives the federal government limited and enumerated powers.

I’ll have more on the other issue in the case — the scope of the Necessary and Proper Clause — a little later. Also, amicus briefs supporting People for the Ethical Treatment of Property Owners are due Tuesday, May 26th. Look for more on the case when those are filed. Finally, don’t forget that we’ll be hosting an event about the case in D.C. on June 2nd with the Competitive Enterprise Institute.