the nd subsequent cases that applied the wrong constitutional provision as well as the wrong in that case and finally in the sixteen years since it was decided does not serve as president in the legal binding case the circuit please the court the state would like to offer two points today st under existing supreme court precedent particularly and if i'd be a person of alias the federal government lacks the forty to regulate that holding the court rejected the same type of argument that the federal government is advancing in this case the federal government's theory in that case was that the insurance marketplace was this massive web interconnected interstate commerce and in order to better regulate that massive web the federal government needed the power to regulate individuals who were already a part of that way to keep them in the web here with the federal government's theory is that a web interconnected species means that it can regulate any individual species in that ecosystem on the theory that the broader ecosystem impacts interstate commerce now the federal government and then if id also argued that it needed to keep people in the insurance market to better regulate that insurance market their argument here is functionally the same they want to be able to protect the harvestman not because it impacts commerce of because they want to keep it in this in this ecosystem in species to better regulate that ecosystem which in turn down the line impacts it's just like seeing underscores the principle that when in doubt federal courts are to interpret the commerce power narrowly rather than broadly the reason is that the federal government is one of limited and numerate of powers as a result outside the regulatory environment will have a substantial impact on interstate commerce and age nineteen a bridge the federal government has made made no such showing here for the reasons that mr weldon outlined a moment ago and set out in more and if id makes clear that that's not permissible just as the federal government doesn't have that type of power as to the insurance system it's similarly does not have the power as to the ecosystem of species presented here original listing of the harvest which happened in ninety eight because they couldn't that would have been well outside the statute of limitations on the court would have jurisdiction for them as this court recently said in the general land office decision and so making a constitutional challenge to the agency already weary to regulate their argument is if i understand it correctly is that their constitutional attack or is it within the purview of the  it's about preserving resources etc etc least that's the way to the argument so help me understand what you're standing response to are still i think that rule twenty four is not a standing argument or we're not when we challenge intervention we're not arguing that may have please the court my name is jason riley lender and i represent the center for biological diversity the defenders of wildlife and travis audubon under the rule of order this this court is bound to uphold prior decisions unless the supreme court volatile of this court squarely rejects the precedent e d f realty considered this exact same issue in the case involving the very same species and it remains binding on this court because no precedent of the supreme court this court or any other the majority could not separately analyze the issue under the necessary and proper clause but even if you do so using justice scalia's concurrence as a guide it only helps our side of the case justice scalia essentially took the same view as judge realty which recognized that congress has the authority under the constitution quote through the intersection of the commerce clause and the necessary and proper clause to regulate and intrastate activity it could not reach standing alone that comprehensive scheme principle is well established in the law and the regulatory program would be severely undercut if it could not reach the nearly seventy percent of the species that can be found only in a single state and every case since was one decided the case on a taxing power and under very different facts with no clear majority opinion on the converse question and i thought i'd be with the government indicate it came down to a very unique set of circumstances where the affordable care act case is analogous at all i feel as though it supports our side of the case or at least does not displace the holding in g d s realty and in fact three circuits since n f i b versus a have held the th the th and again to sit here and marvel because of interstate species is essential to that scheme and the courts have said that if a class of activities affects commerce and it clearly does then courts may not excise individual instances of that class to do otherwise would leave many a seventy percent of species on the list  concerned about the uses of species that may or may not be visible on its face or that were traded to congress previously that no longer are because they're scarcity but to go strictly to the law the courts have made clear that what is is likely to focus solely on the bone cave harvestman supreme court has counseled integration morrison and lopez that what you're looking at is the take prohibition as a whole or the listing prohibition as a whole those prohibitions are rationally related to congress comprehensive s