National Ass'n of Home Builders v. Babbitt

SENTELLE, Circuit Judge,

dissenting:

This case concerns the efforts of San Ber-nardino County, California (“the County”), to construct a hospital and supporting infrastructure for its citizens and other humans. Unfortunately, those efforts discomfit an insect — the Delhi Sands Flower-Loving Fly. According to the parties in this case, there are fewer than 300 breeding individuals of this species, all located within forty square miles in southern California. These flies live as larvae for nearly two years under Delhi Sands, a particular type of grit, apparently found only in those forty square miles of southern California, after which they emerge to feed and breed for two weeks before dying.

In 1982, the County began considering construction of a $470 million “state-of-the-art,” “earthquake-proof’ hospital complex. The day before ground breaking was scheduled to occur in 1993, the U.S. Fish and Wildlife Service (“Service”) of the Department of the Interior (“Interior”) added the fly to the endangered species list and notified the County that construction of the hospital, on County land using County funds, would harm a colony of six to eight flies and would therefore violate federal law. To prevent being prosecuted by the Service, County officials were forced to move the hospital complex 250 feet northward and to set aside 8 acres of land for the fly, delaying construction for a year and costing County taxpayers around $3.5 million. The Service also imposed a variety of other stringent requirements, including preservation of a flight corridor for the insect which today prevents improvements to a traffic intersection necessary to allow emergency access and avoid “virtual gridlock” when the hospital opens. At one point, the Service threatened to require shutting down the eight-lane San Ber-nardino Freeway (U.S. 10, one of the most heavily traveled in southern California) for two months every year (I am not making this up). It did later drop this demand. The Service has also impeded several localities from complying with County-mandated weed-control programs which are an integral part of preventing brush fires in the area. Construction planning and projects, including an electrical substation and housing developments, have also been threatened, impeded, or prohibited because of the fly. Local land-use planning, including the authority to balance environmental concerns with development in a way to best serve citizens’ interests, has been disrupted; the financial health of the local governments has been impacted; a local enterprise zone has been threatened; and private land development has been impeded.

Statutory Justification

What business, one might ask, does the federal government have disrupting these activities of the unit of local government, which range from the purely local to the generally local in nature? The government’s answer begins with a statutory justification. It acts under the authority conferred upon it by the Endangered Species Act (“ESA”), specifically, section 9(a)(1) of that Act, which makes it unlawful, inter alia, to “(B) take any such species within the United States or the territorial seas of the United States.” 16 U.S.C. § 1538 (a)(1)(B). Next, one might ask, what does that statute have to do with the regula *1061 tion of the County’s activities in building a hospital and the supporting infrastructure? It is not apparent that the hospital plans to “take” any insects, or any other species. It proposes to construct structures for human use, and the humans using those structures propose to drive automobiles, each of which might disturb the fly, but would not entail anything that most users of the English language would recognize as “taking” the fly. Unfortunately for the County and its citizens, however, the Secretary of the Interior has determined that the word “take” includes within its definition “harm” and, therefore, activities which alter the habitat of an endangered species are covered by the statute prohibiting the taking of that species since the habitat modification might harm it. Even more unfortunately for the County and the citizens, the Supreme Court has agreed with that expansive definition of “take.” Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 , 115 S.Ct. 2407 , 132 L.Ed.2d 597 (1995). Therefore, we may take it as a given that the statute forbidding the taking of endangered species can be used, provided it passes constitutional muster, to prevent counties and their citizens from building hospitals or from driving to those hospitals by routes in which the bugs smashed upon their windshields might torn out to include the Delhi Sands Flower-Loving Fly or some other species of rare insect. That leaves the question for today as: by what constitutional justification does the federal government purport to regulate local activities that might disturb a local fly?

The Constitutional Justifications

The Department of Interior asserts that section 9(a)(1)(B) of the ESA, and specifically its use of that section to prohibit activities in southern California which might disturb a fly existing only in southern California, are constitutional under the Commerce Clause. U.S. Const. Art. I, § 8, cl. 3. That clause empowers Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” This brings the next question: Can Congress under the Interstate Commerce Clause regulate the killing of flies, which is not commerce, in southern California, which is not interstate? Because I think the answer is “no,” I can not join my colleagues’ decision to affirm the district court’s conclusion that it can.

Analysis

The proposition that the federal government can, under the Interstate Commerce Clause, regulate an activity which is neither interstate nor commerce, reminds me of the old chestnut: If we had some ham, we could fix some ham and eggs, if we had some eggs. With neither ham nor eggs, the chances of fixing a recognizable meal requiring both amount to nil. Similarly, the chances of validly regulating something which is neither commerce nor interstate under the heading of the interstate commerce power must likewise be an empty recitation. I recognize that for some decades of jurisprudential development, the Commerce Clause has been used as the justification for the regulation of a plethora of activities not apparently within its text. See, e.g., Wickard v. Filburn, 317 U.S. 111 , 63 S.Ct. 82 , 87 L.Ed. 122 (1942) (regulating the consumption of home-grown wheat). So wide-ranging has been the application of the Clause as to prompt one writer to “wonder why anyone would make the mistake of calling it the Commerce Clause instead of the ‘hey-you-ean-do-whatever-you-feel-like clause.’ ” Judge Alex Kozinski, Introduction to Volume 19, 19 Harv. J. L. Pub. Pol. 1, 5 (1995). However, in 1995, the Supreme Court brought an end to the galactic growth of the Clause’s application and reminded Congress that the words of that Clause, like the rest of the Constitution, have content, in United States v. Lopez, 514 U.S. 549 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995). While I would have found the present application of the ESA to be outside the enumerated powers of Congress under the Commerce Clause even in the world before Lopez , after that controlling decision, I think there can be no doubt.

In Lopez , the Supreme Court considered the constitutionality of the Gun-Free School Zones Act of 1990, in which Congress made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to *1062 believe, is a school zone.” 18 U.S.C. § 922 (q)(1)(A) (Supp. V 1988). The Court concluded that because “[t]he Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce,” the statute “exceeds the authority of Congress” to regulate commerce under the Interstate Commerce Clause. 514 U.S. at 551 , 115 S.Ct. at 1626. For the same reasons, I would hold that the challenged subsection of the ESA likewise exceeds that authority.

First, ESA section 9(a)(1)(B), like the statute challenged in Lopez , does not regulate commerce. In Lopez , the Supreme Court repaired to first principles. It reminded us that the Commerce Clause, unsurprisingly, regulates “commerce,” and that “commerce ... is traffic ... it is intercourse ... commercial intercourse between nations, and parts of nations,” as relevant here, between states. Id. at 553 , 115 S.Ct. at 1627 (quoting Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 189-190, 6 L.Ed. 23 (1824)). The Lopez Court then went on to analyze the developments of Commerce Clause jurisprudence through the next 171 years after Gibbons v. Ogden. Specifically, the Court noted such significant developments as the enactment of the Interstate Commerce Act, 24 Stat. 379 (1887), and the Sherman Antitrust Act, 26 Stat. 209 (1890), as amended, 15 U.S.C. § 1 et seq., and the era of federal regulation which they ushered into our jurisprudence. Coupling this with the development of the negative Commerce Clause, see authorities collected in Lopez, 514 U.S. at 554 , 115 S.Ct. at 1627 , the Lopez Court traced Commerce Clause jurisprudence to NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 , 57 S.Ct. 615 , 81 L.Ed. 893 (1937), and the growing extension of congressional authority to the regulation of essentially intrastate activities that “ ‘have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions’ [which] are within Congress’ power to regulate.” Lopez, 514 U.S. at 555 , 115 S.Ct. at 1628 (quoting Jones & Laughlin Steel, 301 U.S. at 37 , 57 S.Ct. at 624 ). Following that through Wickard v. Filburn, supra, the Lopez Court finally analyzed the present state of our commerce jurisprudence.

The Court identified “three broad categories of activity that Congress may regulate under its commerce power.” Id. at 558-59 , 115 S.Ct. at 1629. Under the Lopez analysis, these three categories are: (1) “Congress may regulate the use of the channels of interstate commerce”; (2) “Congress is empowered to regulate and protect the instru-mentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; (3) “Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce.” Id. (citations omitted). My colleagues and I agree that Lopez recognizes the limitation of the power of Congress to act under the Commerce Clause to these three categories. Opinion of Judge Wald (“Wald Op.”) at 1045; Opinion of Judge Henderson (“Henderson Op.”) at 1057. They further agree with each other that the federal government’s actions in this case come within its Commerce Clause authority as defined in Lopez . They cannot, however, agree as to how it fits within the Lopez analysis.

I find this inability to agree unsurprising, as this effort to regulate does not fit any of those categories. First, category (2) of constitutional commerce regulation is definitely unavailable. Judge Wald expressly agrees that “section 9(a)(1) of the ESA is not a regulation of the instrumentalities of interstate commerce or of persons or things in interstate commerce.” Wald Op. at 1045. Apparently Judge Henderson agrees sub si-lentia, as she never asserts the second category of Lopez analysis as a foundation for upholding this application of the Act. That said, we are left with potential justification of the Act only as regulation of the use of channels of interstate commerce or as an exercise of Congress’ power to regulate those activities having a substantial relationship to interstate commerce. My colleagues accept differing arguments as to why one or both of those rationales underpins the exercise of federal authority over purely local actions disturbing a purely local fly.

Judge Wald first asserts that the action taken by the Service under section 9(a)(1)(B) is a constitutional regulation of “the use of *1063 the ‘channels of interstate commerce.’ ” Wald Op. at 1046 (quoting Lopez, 514 U.S. at 558 , 115 S.Ct. at 1629 ). The short disposition of this argument is to say it does not command a majority even without me. Judge Henderson rejects it out of hand, noting, correctly, that all authority offered by Judge Wald in support of the channels-of-commerce rationale upheld regulation “necessarily connected to movement of persons or things interstate____” Henderson Op. at 1057 (citing United States v. Rambo, 74 F.3d 948 (9th Cir.1995); United States v. Darby, 312 U.S. 100 , 61 S.Ct. 451 , 85 L.Ed. 609 (1941); and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 , 85 S.Ct. 348 , 13 L.Ed.2d 258 (1964)). As Judge Henderson goes on to note, neither the whole of the endangered species, nor any of the individuals comprising it, travel interstate. The Delhi Sands Flower-Loving Fly is an inveterate stay-at-home, a purely intrastate creature. The Gun-Free School Zones Act, stricken as unconstitutional by the Supreme Court in Lopez , involved purely local possession of firearms, objects which do move in interstate commerce, presumably through its channels. The Supreme Court without difficulty determined that that section was “not a regulation of the use of the channels of interstate commerce.” Neither is this. It does not purport to be. 1

Not only do I join Judge Henderson in rejecting any claim that section 9(a)(1)(B) is constitutional as a proper regulation of the channels of commerce, but I would go further than she and note that Judge Wald’s supporting analysis of Darby and Heart of Atlanta is far off the mark.

As Judge Wald notes, both Darby and Heart of Atlanta concerned congressional efforts to “rid the channels of interstate commerce of injurious uses.” Wald Op. at 1048. But, for reasons I have already described, supra n. 1, preventing habitat destruction contributes nothing to the goal of eliminating the fly, or any other endangered species, from the channels of commerce. The fact that activities like the construction of a hospital might involve articles that have traveled across state lines cannot justify federal regulation of the incidental local effects of every local activity in which those articles are employed. Judge Wald seems to be trying to extend Congress’ power over the channels of commerce to allow direct federal regulation of any local effects caused by any activity using those channels of commerce. She focuses not on the fly in the channels of commerce, but everything else moving in the channels of commerce that may affect the fly. But this improperly inverts the third prong of Lopez and extends it without limit. Under Judge Wald’s theory, instead of being limited to activities that substantially affect commerce, Congress may also regulate anything that is affected by commerce.

While Judge Henderson agrees with me that category (1) of Lopez regulation does not support the Department’s position, she agrees with Judge Wald that the statutory protection of the flies can be justified under category (3): that is, that it is the regulation of “activities that substantially affect interstate commerce.” Lopez, 514 U.S. at 558-59 , 115 S.Ct. at 1629-30 . Once again, however, my colleagues cannot agree as to a rationale. Before responding to their differing opinions on why the regulation of intrastate fly killing falls within Congress’ “power to regulate those activities having a substantial relation to interstate commerce,” I pause to further elaborate the Supreme Court’s analysis of that category of legitimate regulatory power from Lopez . Because category (3) was the only category which even arguably could have permitted Congress to regulate the purely intrastate possession of firearms con *1064 sidered in Lopez , the Supreme Court afforded it a more thorough analysis than the other two categories and, in so doing, established three areas of inquiry necessitated by a claim of interstate commerce authority under the “substantial effects” category. Thus, in considering whether or not to uphold regulation under that rationale, we must examine whether:

— the regulation controls a commercial activity, or an activity necessary to the regulation of some commercial activity;

— the statute includes a jurisdictional nexus requirement to ensure that each regulated instance of the activity affects interstate commerce; and

— the rationale offered to support the constitutionality of the statute (i.e., statutory findings, legislative history, arguments of counsel, or a reviewing court’s own attribution of purposes to the statute being challenged) has a logical stopping point so that the rationale is not so broad as to regulate on a similar basis all human endeavors, especially those traditionally regulated by the states. 2

None of the rationales offered by my colleagues pass this examination. Judge Wald offers two possible explanations as to why the challenged regulatory activity falls within category (3). First, she puts forth the “biodiversity” rationale. Under this rationale, she argues that the extinction of a species, and the concomitant diminution of the pool of wild species, “has a substantial effect on interstate commerce by diminishing a natural resource that could otherwise be used for present and future commercial purposes.” Wald Op. at 1053. As I understand her argument, because of some undetermined and indeed undeterminable possibility that the fly might produce something at some undefined and undetermined future time which might have some undefined and undet-erminable medical value, which in turn might affect interstate commerce at that imagined future point, Congress can today regulate anything which might advance the pace at which the endangered species becomes extinct. Judge Henderson rejects this rationale, noting cogently that our colleague admits “that it is ‘impossible to calculate the exact impact’ of the economic loss of an endangered species,” Henderson Op. at 1058 (quoting Wald Op. at 1053). Judge Henderson further notes that “it is equally impossible to ascertain that there will be any such impact at all.” Id. She then reasons, and I agree, that we cannot then “say that the protection of an endangered species has any effect on interstate commerce (much less a substantial one) by virtue of an uncertain potential medical or economic value.” Id. I would further note that Judge Wald’s first rationale fails under each of the subsidiary inquiries of category (3) discussed above.

First, the regulation does not control a commercial activity, or an activity necessary to the regulation of some commercial activity. Neither killing flies nor controlling weeds nor digging holes is either inherently or fundamentally commercial in any sense. Like the criminal statute struck down in Lopez , the challenged section of the ESA “by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S. at 561 , 115 S.Ct. at 1630-31 . In applying that test in Lopez , the Supreme Court noted that “[sjection 922(q) is a criminal statute” and that “under our federal system, the States possess primary authority for defining and enforcing the criminal law.” Id. at 561 & n. 3, 115 S.Ct. at 1631 & n. 3 (citations and internal quotations omitted). The activity regulated in the present case involves local land use, a similar traditional stronghold of state authority.

As to the second subsidiary inquiry, the Supreme Court noted in Lopez that the statute before it contained “no jurisdictional element which would ensure, through case-by-case inquiry, that the firearms possession in question affects interstate commerce.” Id. at 561 , 115 S.Ct. at 1631. Just so with the ESA. Nothing in section 9(a)(1)(B) of the Act or any other governing section requires that the regulated activity affect interstate commerce or provides any jurisdictional nexus *1065 supporting such a test. Like the statute in Lopez , it falls outside the authority granted by the Commerce Clause. 3

Third, the rationale offered by Judge Wald to support this intrastate application of a statute unlimited by either of the other two subsidiary inquiries has no logical stopping point. As Judge Henderson suggests, the rationale dependent upon the purely speculative future impact of an action with no demonstrable impact at all cannot be said to “ha[ve] any effect on interstate commerce (much less a substantial one).... ” Henderson Op. at 1058. If it could, then I do not see how Congress could be prohibited from regulating any action that might conceivably affect the number or continued existence of any item whatsoever. A creative and imaginative court can certainly speculate on the possibility that any object cited in any locality no matter how intrastate or isolated might some day have a medical, scientific, or economic value which could then propel it into interstate' commerce. There is no stopping point. If we uphold this statute under Judge Wald’s first rationale, we have indeed not only ignoredLopez but made the Commerce Clause into what Judge Kozinski suggested: the “hey-you-can-do-whatever-you-feel-like clause.” Kozinski, supra.

Though Judge Henderson rejects Judge Wald’s “biodiversity” rationale, she relies on a related justification of her own, which is to me indistinguishable in any meaningful way from that of Judge Wald. As I understand her rationale, it depends on “the interconnectedness of species and ecosystems,” which she deems sufficient for us “to conclude that the extinction of one species affects others and their ecosystems and that the protection of a purely intrastate species [concededly including the Delhi Sands Flower-Loving Fly] will therefore substantially affect land and objects that are involved in interstate commerce.” Henderson Op. at 1059. I see this as no less of a stretch than Judge Wald’s rationale. First, the Commerce Clause empowers Congress “to regulate commerce” not “ecosystems.” The Framers of the Constitution extended that power to Congress, con-cededly without knowing the word “ecosystems,” but certainly knowing as much about the dependence of humans on other species and each of them on the land as any ecologist today. An ecosystem is an ecosystem, and commerce is commerce.

Granted, years of jurisprudence have extended that regulatory authority to encompass “activities having a substantial effect on interstate commerce,” the third category of Lopez legitimacy, but Judge Henderson’s rationale fails the analysis of this third category as completely as does Judge Wald’s. I will not rehash the first two subsidiary requirements, because the failure is for precisely the same reasons set forth above. As to the third subsidiary test, it fails for substantially the same reasons as Judge Wald’s — it has no stopping point. There is no showing, but only the rankest of speculation, that a reduction or even complete destruction of the viability of the Delhi Sands Flower-Loving Fly will in fact “affect land and objects that are involved in interstate commerce,” Henderson Op. at 1059, let alone do so substantially. 4 Nothing in the statute certainly necessitates such a nexus, nor has my colleague supplied a reason why this basis of regulation would apply to the preservation of a species any more than any other act potentially affecting the continued and stable existence of any other item of a purely intrastate nature upon which one might rest a speculation that its loss or change could somehow affect some other object, land, or otherwise, that might be involved in interstate commerce.

In addition to their biodiversity/ecosystem justifications, each of my colleagues offers a second rationale for justifying Interior’s actions under the third category of Lopez regu *1066 lation. Judge Wald asserts that “[t]he taking of the Fly and other endangered animals can also be regulated by Congress as an activity that substantially affects interstate commerce because it is the product of destructive interstate competition.” Wald Op. at 1054. I am not at all certain what that means in relation to the application of the ESA to the building of a hospital and supporting infrastructure in a single intrastate location. She relies on Hodel v. Virginia, 452 U.S. 264 , 101 S.Ct. 2352 , 69 L.Ed.2d 1 (1981), Hodel v. Indiana, 452 U.S. 314 , 101 S.Ct. 2376 , 69 L.Ed.2d 40 (1981), and United States v. Darby, 312 U.S. 100 , 61 S.Ct. 451 , 85 L.Ed. 609 (1940). Although she asserts “striking parallels” between those eases and the present one, I see no parallel at all. In each of those cases, Congress regulated arguably intrastate commercial activities, specifically mining and lumber production for interstate commerce. In each of those cases, the Supreme Court upheld the relevant statutes, noting that the regulated actors would either destroy other commercial activities or be able to unfairly compete with interstate competitors subject to higher regulatory standards protective of other elements of commerce. In the present case neither Congress nor the litigants, nor for that matter Judge Wald, has pointed to any commercial activity being regulated, any commercial competition being unfairly challenged, or any other sort of commerce being destroyed by the taking of the fly. With reference to her other rationale, I saw no stopping point; here, I am not even sure what the beginning point is, let alone the terminus. I do not think a decision upholding the challenged section of the ESA on this rationale can exist in the same jurisprudence as Lopez .

Finally, Judge Henderson would justify the challenged section on the basis that “in enacting the ESA, the Congress expressed an intent to protect not only endangered species, but also the habitats that they, and we, occupy.” Henderson Op. at 1059. I see no legally significant distinction between this justification and her “ecosystems” justification. The Commerce Clause empowers Congress to regulate “commerce,” not habitat. People and animals lived in habitats at the time of the adoption of the Constitution, and we live in habitats now. Because the power to regulate habitats was “not delegated to the United States by the Constitution, nor prohibited by it to the states,” that power is “reserved to the states respectively, or to the people.” U.S. Const. Amend. X. For the reasons outlined with reference to the ecosystem justification, the habitat justification fails as well.

Judge Henderson would support her view that Commerce Clause authority extends to the regulation of “land inhabited by the endangered species,” with the language of Wickard v. Filburn, 317 U.S. 111, 125 , 63 S.Ct. 82, 89 , 87 L.Ed. 122 (1942), that a subject matter “may ... be reached by Congress” because “it asserts a substantial economic effect on interstate commerce.” I do not see the applicability of the Wickard language to our present controversy. The statute in Wickard involved the regulation of the interstate wheat market. The issue in Wick-ard involved the production and consumption of homegrown wheat. Where Congress has acted to regulate interstate commerce in a commodity, the intrastate production and consumption of that commodity in fact has an obvious effect on the impact of the regulatory scheme. While the effect of one farmer’s production and consumption may not by itself be substantial, “his contribution, taken together with that of many other similarly situated, is far from trivial.” Wickard 317 U.S. at 127-28 , 63 S.Ct. at 90 , quoted in Lopez 514 U.S. at 556 , 115 S.Ct. at 1628 . In discussing Wickard , the Lopez Court rejected the notion that the Wickard precedent establishes that “all activities affecting commerce, even in the minutest degree, may be regulated and controlled by Congress.” Lopez 514 U.S. at 558 , 115 S.Ct. at 1629 (citation and internal punctuation omitted). It went on to note that the Court in Maryland v. Wirtz, 392 U.S. 183 , 88 S.Ct. 2017 , 20 L.Ed.2d 1020 (1968), had rejected that expansive reading of Wickard and held that “neither here nor in Wickard has the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities.” Id. at 196 n. 27, 88 S.Ct. at 2024 n. 27, quoted in Lopez 514 U.S. at 558 , 115 S.Ct. at 1629 . Here, there is no general regulatory scheme of interstate commerce in *1067 a commodity such that the cumulative effect of purely local state and private activities could substantially affect it. There is no commerce in the Delhi Sands Flower-Loving Fly.

An alternate reading of Judge Henderson’s second justification with its stress on the effect of the regulation upon the highway and hospital is that she concludes that Congress may regulate purely intrastate activities— e.g., the habitat modification of the fly— where the regulation will then affect items which are arguably in interstate commerce. Again, I do not see the stopping point. Congress is not empowered either by the words of the Commerce Clause or by its interpretation in Lopez to regulate any non-commercial activity where the regulation will substantially affect interstate commerce. The most expansive view of Lopez is that Congress can regulate “those activities having a substantial relation to interstate commerce.” Nowhere is it suggested that Congress can regulate activities not having a substantial effect on commerce because the regulation itself can be crafted in such a fashion as to have such an effect.

In the end, attempts to regulate the killing of a fly under the Commerce Clause fail because there is certainly no interstate commerce in the Delhi Sands Flower-Loving Fly. The whole effort to employ a clause that empowers Congress to regulate commerce in order to serve a perhaps worthy but wholly non-commercial goal of preserving an endangered fly calls to mind the thoughts of the first great commentator on the Constitution, Justice Joseph Story. Story considered the then-current question of whether the constitutional authority to regulate commerce could be applied to the perhaps worthy “purpose of encouraging and protecting domestic manufactures.” He declared,

If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments____ The power to regulate manufactures is no more confided to congress, than the power to interfere with the systems of education, the poor laws, or the road laws of the states.

Joseph Story, 2 Commentaries on the Constitution § 1075 (1833).

Conclusion

I dissent from the decision of this court to uphold that regulation.

. Judge Wald unsuccessfully attempts to distinguish Lopez by claiming that a prohibition against habitat destruction is "necessary to enable the government to control the transport of endangered species in interstate commerce.” Wald Op. at 1046. The fly is not an article of interstate commerce, and does not travel the channels of commerce. The issue before us is not possession or sale of flies, but, essentially, destruction of flies. Congress may have the authority to prevent interstate transportation of flies, and that aspect of the ESA is not challenged here. But preventing destruction of local flies cannot reasonably be held to be either "necessary” or "proper" to keeping the channels of commerce free from their interstate transportation. While prohibiting the local possession and exchange of flies might arguably be necessary to preventing interstate transportation or exchange of flies, prohibiting destruction of fly habitat is not.

. This specific formulation of the inquiries necessary under category (3) is drawn from United States v. Wall, 92 F.3d 1444, 1455-56 (6th Cir.1996) (Boggs, J., dissenting in part). However, each of the points summarized in Judge Boggs’s formulation is taken directly from Lopez, 514 U.S. at 559-65 , 115 S.Ct. at 1629-33 .

. Judge Wald chides me for not discussing Terry v. Reno, 101 F.3d 1412 (D.C.Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 2431 , 138 L.Ed.2d 193 (1997). See Wald Op. at 1049 n. 8. In Terry , the effect on commercial activity was obvious— persons blocking access to clinics directly affected the business of abortion doctors serving interstate customers. The taking of a purely local fly, a harm without even a remote effect on commerce, cannot be reasonably likened to local activities undertaken with the purpose and effect of directly impeding interstate commerce.

. Indeed, there is nothing in either Judge Henderson’s opinion or the record to support speculation that the extinction of the Delhi Sands Flower-Loving Fly would have any effect on any other species.