After Gonzales v. Raich: Is the Endangered Species Act Constitutional under the Commerce Clause?

In both its 1995 decision United States v. Lopez and in its 2000 decision United States v. Morrison, the Supreme Court had adopted a narrow economic interpretation of congressional authority to regulate intrastate activities under the Commerce Clause. In 2005, however, the Court in Gonzales v. Raich limited the scope of Lopez and Morrison by allowing Congress greater latitude to regulate intrastate activities under the Commerce Clause if they are regulated as part of a comprehensive statutory scheme that on the whole appropriately regulates interstate commerce; an issue which the Lopez and Morrison decisions had not addressed. Justice Stevens' majority opinion stated that even the Lopez decision had recognized the ability of Congress to regulate non-economic, intrastate activities if their regulation was necessary to effectuate regulation of interstate commerce. Not joining the majority opinion in Raich, Justice Scalia wrote an interesting and potentially influential concurring opinion that relied on the Constitution's Necessary and Proper Clause to justify regulation of medical marijuana under the Commerce Clause. His opinion was somewhat surprising because he had joined the Court's majority opinions in Lopez and Morrison. Neither of those cases, however, had invoked or discussed the Necessary and Proper Clause. In some respects, his approach potentially allows Congress broader latitude to regulate non-economic, intrastate activities than the majority opinion. Justice Scalia's emphasis on the Necessary and Proper Clause's role in implementing Congress' authority under the Commerce Clause could be especially helpful in defending Congress' authority to enact comprehensive statutes to regulate intrastate environmental harms that do not directly affect interstate commerce, but indirectly affect the environment in ways that in the aggregate substantially affect interstate commerce. In four separate cases, the District of Columbia, Fourth and Fifth Circuits have struggled with deciding whether Congress may still protect endangered and threatened species under the Commerce Clause after Lopez, Morrison or SWANCC. In each case, the court in the end concluded that Congress did have the authority to protect endangered species under the Commerce Clause, including small isolated intrastate species that have little commercial value, although there were dissenting opinions in each case. Because of Lopez and Morrison's failure to provide an adequate framework for analyzing Congress' authority under the Commerce Clause, the four decisions applied different and sometimes clearly contradictory rationales to justify regulation of endangered species under the Commerce Clause. Two of these courts aggregated or considered all endangered and threatened species in determining that they have a substantial impact on interstate commerce and in concluding that the ESA is constitutional under the Commerce Clause, but the Supreme Court has never validated that approach. Both Raich and Justice Scalia's Raich concurring opinion with its emphasis on the Necessary and Proper Clause offer a way around many of the difficulties resulting from Lopez and Morrison's failure to define the line between economic and non-economic activities under the Commerce Clause. By emphasizing the authority of Congress to regulate non-economic, intrastate activities as part of a comprehensive scheme of regulation, Raich's reasoning implies that Congress has authority under the Commerce Clause to regulate endangered species. Under the Commerce Clause in conjunction with the Necessary and Proper Clause, Congress may protect all endangered species, including intrastate species or those with no direct commercial value in interstate commerce, because the ESA's comprehensive scheme is necessary to preserve interdependent species and ecosystems that do have significant impacts on interstate commerce. Furthermore, because the statute regulates only endangered and threatened species, leaves all other species to state regulation, and promotes concurrent federal-state regulation of wildlife, the ESA's regulation of interstate is cabined by the type of limiting principles that Justice Scalia applied in his Raich concurrence, and, therefore, the ESA is consistent with the Constitution's federalist values.