Once again, a court has refused to recognize any meaningful limit to Congress’s authority to regulate Americans’ private lives through the Commerce Clause. On Wednesday, after a long delay in considering the case, the U.S. Court of Appeals for the Tenth Circuit reversed a district court order that had declared the U.S. Fish and Wildlife Service (FWS)’s regulations prohibiting the “taking” of the Utah prairie dog (effectively, anything that may disrupt its habitat) unconstitutional. (This is a case in which Cato had filed a brief nearly two years ago.)
The court held that, since Congress had a rational basis to believe that protecting the prairie dog “constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce,” the FWS regulations are authorized under Article I, section 8. This, despite acknowledging that “taking” the prairie dogs—which exist solely within the borders of Utah and have no economic value—is a “noncommercial, purely intrastate activity.”
The case was brought by People for the Ethical Treatment of Property Owners (PETPO), a nonprofit organization formed by Utah residents and property owners to protect their interests in the face of FWS’s burdensome regulations. Its members have been prevented from building homes, starting small businesses, and even from protecting local parks and cemetery grounds. Finally, enough was enough and PETPO brought suit against the FWS on the grounds that neither the Commerce Clause nor the Necessary and Proper Clause authorizes Congress to regulate this rodent on nonfederal land. Such is the bizarre dreamscape in which the Tenth Circuit exists: where the power to regulate interstate commerce somehow covers activities that are neither interstate nor commercial.
But how did we get here? The Commerce Clause, while always a fairly broad source of authority—at least since Chief Justice Marshall’s landmark decision in Gibbons v. Ogden (1824)—wasn’t always read as a congressional blank check. It wasn’t until 1942, when the post-New Deal Supreme Court held in Wickard v. Filburn that even wholly interstate, noncommercial activity can be regulated by Congress, as long as, looked at in the aggregate, the activity could theoretically impact interstate commerce if enough people engaged in it. And while the Court has made some effortsto place outer limits on Congress’s commerce power—most notably in United States v. Lopez (1995), United States v. Morrison (2000), and NFIB v. Sebelius (2012)—these opinions seem to have done little to actually rein in federal overreach. The medical-marijuana case of Gonzales v. Raich (2005), which held that an activity may be regulated if it’s plausible that Congress thought doing so would be an “essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce,” is the precedent most relied on here. The Tenth Circuit, uncritically following a line of much-maligned cases holding only the most tenuous connections to actual constitutional text, has managed to chip away at the limits on federal power even more than the Supreme Court has already done.
The Constitution’s Commerce Clause affords Congress the power to regulate only items, channels, or instrumentalities of interstate commerce. If Congress wants to regulate activities that “substantially affect” interstate commerce, that power rests in the Necessary and Proper Clause, which gives Congress the means to regulate interstate commerce—provided those means are both necessary and proper. But the activities prohibited by the FWS regulation don’t substantially affect interstate commerce. Moreover, the “take” rule isn’t necessary: Congress can regulate interstate commerce without interfering with residents’ use of their property. Nor is it proper: the power to regulate uses of property that don’t affect interstate commerce belongs to the states.
Hopefully PETPO will now appeal to the Supreme Court, which, newly invigorated by the words and ideas of an energetic textualist like Neil Gorsuch (who, by the by, wasn’t on this Tenth Circuit panel), will see this as another opportunity to place meaningful limits on federal authority. Until then, it appears that the good citizens of Utah will have to continue bearing burdens caused not by the critters at issue – this isn’t Bill Murray in Caddyshack – but by federal regulators’ use of powers that simply aren’t theirs to assert.