Yesterday, the Tenth Circuit joined a disappointingly large number of federal courts to say “yes.” In People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, the court stretched the elastic Commerce Clause—which authorizes federal regulation of economic activity that has a substantial effect on interstate commerce—beyond recognition, upholding federal regulation of noneconomic activity with no appreciable connection to interstate commerce. In adopting this interpretation, the Tenth Circuit overturned a decision from a federal court in Utah holding that the federal government overstepped when it broadly forbade “take” of Utah prairie dogs, a species with no tie to commerce.
From a libertarian perspective, this decision is doubly harmful. First, it undermines, if not completely forbids, the state of Utah’s ongoing efforts to protect the Utah prairie dog without imposing unfair burdens on private property owners. Disproving decades of environmental groups’ insistence that states are unwilling to protect species, Utah admirably stepped in after the federal court enjoined federal regulation. Working with property owners, rather than against them, the state safely and humanely captures prairie dogs in problem areas—backyards, playgrounds, airports, and cemeteries—and relocates them to conservation lands where they can be permanently protected. After decades of suffering under burdensome federal regulations, the future was starting to look bright for both prairie dogs and property owners.
The Tenth Circuit decision casts that future into doubt. By restoring the federal regulation, the court has blocked future implementation of Utah’s program. The federal regulation forbids anyone from catching or moving a Utah prairie dog, on pain of criminal punishment.
The decision also undermines the Constitution’s system of limited and enumerated powers. It embraces a theory of federal power that encourages the federal government to regulate more and more, as the more it regulates the less vulnerable it is to constitutional attack. According to the decision, the federal government can regulate anything for any reason, so long as it’s part of a “comprehensive regulatory scheme” and the scheme has some tangential relation to commerce. That’s why, in the court’s view, it doesn’t matter that “take”—the activity at issue in this case—isn’t economic activity and the Utah prairie dog has no meaningful effect on interstate commerce. Some species do, so the federal government is free to regulate anything else affecting any other species as part of a comprehensive scheme that also includes a species that affects commerce.
Never mind that humans are a species too and that we, as a species, have a huge effect on interstate commerce. If the Tenth Circuit’s reasoning is correct, the federal government has the authority to regulate anything that affects a single person, so long as it places that regulation in a big, monstrous “comprehensive scheme.” Tellingly, the court’s opinion does not identify any limit to its theory of federal power. Nor could it.