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Fifth Circuit Commerce Case

The Supremes just denied cert. in an interesting Fifth Circuit commerce clause case. The panel opinion is here and the opinion of six judges dissenting from denial of rehearing en banc is here. (both in .pdf)

Facts: a landowner wanted to develop land on which there were caves whose pools held critters protected by the Endangered Species Act. The ESA prohibits "taking" such, which includes killing or harming them by development. The landowner challenged this as applied (i.e., as applied to this one situation) as beyond beyond Commerce Clause powers. The panel opinion upheld the statute as applied.

The panel opinion does a great job of laying out standards, but I agree with the en banc dissent that, having laid them out, it applies them in a contradictory fashion. The two key issues revolve around "aggregation" -- when can Congress argue that while the particular activity at issue doesn't sufficiently affect commerce, all activities of this type in aggregate would.

The panel lays out two criteria for aggregation:

1. The regulated activity must be commercial in nature. Noncommercial acts (usually) cannot be aggregated. (US v. Lopez -- possessing a gun in a school zone is noncommercial and cannot be aggregated). The panel recognizes that the focus must be upon the regulated activity (here, taking cave shrimp) and not upon its motivation (to develop the land). But then the panel holds that the ESA can apply because the majority of takings covered by it will have an economic motive. [Apart from the fact that this contradicts the standard it just laid out, this is essentially aggregating all conduct regulated by the statute in order to decide whether aggregation is in order].

2. Regulation of the particular conduct must be "essential" to the entire regulatory scheme. (Example: the medicinal pot case, and the argument that allowing medicinal pot would enable people to undercut the entire regulation of marihuana). That's hard to see in this case. Allowing this landowner to nuke some cave shrimp would hardly lead to wholesale evasion of the ESA. But the panel treats ESA as an plan to conserve all listed species, and argues that allowing extinction of one species would undercut that. Again, the ruling contradicts the standard just laid out. It's hard to see how any situation could fail this "essential to the regulatory scheme" criteria

The panel opinion gives great insight into the aggregation principle -- unfortunately, its holding illustrates that, principles or no principles, the lower federal courts HATE to find anything outside the Commerce Clause power!

· Commerce Clause