Amicus Curiae Brief — GDF Realty Investments, Ltd. v. Norton

No. 03-1619

re rere

IN THE

Supreme Court of the Gnited States

GDF REALTY INVESTMENTS, LTD., ET AL.

Petitioners,

ov,

GALE A. NORTON, Secretary of the Interior, et al.,

Respondents.

On Petition for Writ of Certiorari

to the Unite States Court of Appeals

For the Fifth Circuit

BRIEF OF AMICUS CURIAE THE CLAREMONT INSTITUTE

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF THE PETITIONER

Edwin Meese III John C. Eastman

214 Massachusetts Ave. NE Counsel of Record

Washington, D.C. 20002 The Claremont Institute Center

for Constitutional Jurisprudence

c/o Chapman University

One University Drive

Orange, CA 92866

(714) 628-2500

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

ee SR RENE FONE EPS AS MIR AEA PL LS

i.

QUESTIONS PRESENTED

Whether the Fish & Wildlife Service violated

the Commerce Clause by regulating “takes”

of intrastate, non-economic species under the

Endangered Species Act.

Whether aggregation of all takes of all

endangered species may sustain the regulation

of intrastate, non-economic species whose

takes, considered alone, do not substantially

affect interstate commerce.

(i)

il

PASE OF CONTENTS

QUESTIONS PRESENTED .........0.c.ccccscssssssssesssscsesesecesscesesees i

TABLE OF AUTHRORE PUIG ssscccissccovssevsovssesenswevseseesssonsoverech ili

INTEREST OF AMICUS CURIAE ueseccsccssssssssscssssssssesesssseees l

REASONS FOR GRANTING THE WRIT ........ccccscscsesseeees 3

I. The Federal Government’s Regulation of the Wholly

Intrastate, Non-Commercial Species at Issue Here

Exceeds Congress’s Powers Under the Commerce

Clause, Both as Originally Understood and As

Recently Interpreted by this Court. .0......c.cccccccssesesessseeeees 3

A. As originally conceived, Congress’s power

under the Commerce Clause was limited to

the regulation of interstate trade. ...........:.ccecccec00: 3

B. Even under the expanded view of the

Commerce Clause taken in this Court’s

modern-era precedents, the expansion of the

Endangered Species Act at issue here exceeds

the outer limits of the power afforded to

0 Ns sine eA NS a Se 9

C. This Court Should Grant the Writ of

Certiorari in order to repudiate the

aggregation principle of Wickard v. Filburn,

thereby removing from Congress and the

regulatory agencies the remotely colorable

claim to unconstitutional assertions of power

tet K QUOEIR. cnsisnsntemanmabnenitaniidiann 14

fl. The Fifth Circuit’s Rationale Conflicts with the

Rationale of the D.C. Circuit in Rancho Viejo v.

POCO, cxrscnvrenticisnsssrisintesaia nore 16

lii

TABLE OF AUTHORITIES

CASES

A.L.A. Schechter Poultry Corp. v. United States,

I WI sc cdasieceninsesedetsvneteaveuesesestercseeesoens 4,6, 10

Alden v. Maine,

dics ol csisloises swtosinioennmmvesetivesveeetents 12

Baldwin v. Fish and Game Comm'n of Mont.,

iid sac clonccdeesediepenscuispiovenieedboenncenenesenes 5

Bowman v. Railway Co.,

I Ne I is scscctcseveensvivessvvsenveseenereenestectseneees ate

Brown v. Maryland,

Bs CA PMI) B19 C1G27) oc cccoscccnsevecovscovcocevnseveenseos 5

Brzonkala v. Virginia Polytechnic Inst. & State Univ.,

169 F.3d 820 (4th Cir. 1999), aff'd sub nom, United

States v. Morrison, 529 U.S. 598 (2000) ...........:...c0c000e0e 13

Camps Newfound/ Owatonna v. Town of Harrison,

I Ue Sle BOW CBE Picecccosserseveoncecossucovevesesevevsevesevees 7

Carter v. Carter Coal Co.,

a Lacs cnonisinvenoetenenusnonesneonsiss 5, 14

College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666 (1999) ........:.csccsscceeeeees 12

Corfield v. Coryell,

ee CGMP, BRA) cvcecesssoesesecssnnsveresecsseseverss 3

Escanaba & Lake Michigan Transp. Co. v. City of

I BE Sisale FS (LURE) vnceeseresnvvevseesevesevensevesensoesess 12

Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 527 U.S. 627 (1999) ......ccceceeeseeeeeeees 12

Forgett v. United States,

gE SRR Cn TT: 20

Freier v. Westinghouse Electric Corp.,

303 F.3d 176 (2nd Cir. 2002), cert. denied, 538

"WR I iccdhscnil ie csterssacgncscacedanesecnenan 18

Garcia v. San Antonio Metropolitan Transit Auth.,

ea ee I vaca interersilcsecbiatemelsiannaticelansaeeanicceeskaiaadescas 5

Gibbons v. Ogden,

Sa EB. OF WO.) 1 CGB) vncecvceccnoevscnesvrssreseversons 3,5, 6,8

Gibbs v. Babbitt,

SOW ie Fe CN CAE, BI revsvicecsncsncntvceceevetvoninascavcetavees 18

In re Rahrer,

PR Si aialy ae ITE Bieshissnsnvsccedsiviisveshdusiesiepndninieessiamanansiatcdaenen 5

Kidd v. Pearson,

Ct SE SEER SET LE NSIC EEE EMS SRE ROEM oP UE 4

Leisy v. Hardin,

SP Se SE bibicesesteatcicaiahiieeniain alcatel 5

M’Culloch v. Maryland, .

17 UB. (@ Wheat.) SIG. (1B 19) cc coccesesocsveveeveosascersvveees 9, 14

Mobile Co. v. Kimball, A

ee a eC eiscicietarceensiaceavteeiesdabecinstlidcnaeeiiods 5

N. L. R. B. v. Jones & Laughlin Steel Corp.,

i cia bein tiieaibea lire cisidoe ciniaasinacicccta 10

National Ass’n of Home Builders v. Babbitt,

SP ee I a Ry BED enirsrecciniitscvinevnnctsvvinntereeini 16

Printz v. United States,

Ee EL. , ee ee Tee een ae 12

Seminole Tribe of Florida v. Florida,

Ee NE eiiaiciisdincisatinincceiicialalasenpaseaaaliuns 12

Vv

South Covington & C. St. R. Co. v. City of Covington,

FSS TD. Bar, Bee Cia views vianiniinaianiniaiiaaiean 12

The License Cases,

BB US. Fy FED erin cicercistetvvaprervinictinietinies 4,5

United States v. Ballinger,

SUS FS TAG CI Ce. Bie bee viiniinsenssisunctepnectonscrecin 18

United States v. Bongiorno,

Be Fe FET EERE GR: FIED vatiiescnnnecscecsivenitcisemnenn 17

United States v. Cortes,

299 F.3d 1030 (Sth Cir. 2002).......cccccccsssssecsessvecsseonseseeses 18

United States v. E.C. Knight Co.,

EDG OLD. 1 CI eviccacietttienvteiseniemsiciienbmidinennan 4,5

United States v. Holston,

563 FOG FS Ge Ci, Fe eriinnciswtirrestsicsiieemnenan 18

United States v. McCoy,

SED F.56 F116 CO, FI ice sicnensnseeteceinrecincicatacicmniees 18

United States v. Lopez,

Sh6 US, SOO Ce ikicitieieeniceiceminniaens passim

United States v. Morrison,

SIO US. Fee Ce ianinndicnnnana passim

United States v. Ohio Power Co.,

951 CB. FeO CI witisitieicttiinrinreinannin 20

United States v. Rodia,

596 B30 GS CO Cal. TID ccreressinsseinctineermnaemninen 17

United States v. Salerno,

G61 US. Fa I ecceitins henner 16

United States v. Whited,

311 F.3d 259 (3rd Cir. 2002), cert. denied, 538

US. 1GEG GF) eictecritsisiciicsdinniontnnmanmiaiiannnens 18

Vi

United States v. Zorilla,

Fa F356 tT CREA, BIG) cecenccercsnrnistesstinrinnnammmaaiaiala \7

Virginia v. Tennessee,

146 U.S. FOS CIGDS) ccccecccrescecevessensevecesneseptenvateoameesinansn 13

West Virginia ex rel. Dyer v. Sims,

341 UB. ZZ (IGGL) .cccscccssecessessensessentsscocsssimvmennncemminnas 13

CONSTITUTIONAL PROVISIONS & STATUTES

15 U.S.C. § 1SSSGC TG) ncccocosevsscvecrscsvestsonsesossoosnscessvvetesoeoen 7

Bald Eagle Protection Act, ch. 278, 54 Stat. 250

(1940) (16 U.3.C. G6G 66 68G.) cccecosccccesevesosvenscosceseocsvosssooees 8

Black Bass Act, ch. 346, 44 Stat. 576 (1926),

(repealed by Act of Nov. 16, 1981, Pub. L. No. 97-

79, § HBOKZ), GS Stat. 1DTH (IGGL) cccccccecesccoceceseccvesercsveceese 8

Endangered Species Act, 15 U.S.C. § 1501 et seq. ...... passim

U.S. Conat., Ast. 1, § ©, Cl. 3 ..ccorrcccovercccscoeveesecescovseeseeses passim

OTHER AUTHORITIES

B. Ackerman, Liberating Abstraction,

_ ime BA Bisse), eee 15

R. BERGER, FEDERALISM: THE FOUNDERS' DESIGN

(EDS 7} nccereveccrescsvnvevsentounivesnibvesentenesueenamndinndamnaaiagias 15

R. BORK, THE TEMPTING OF AMERICA: THE

POLITICAL SEDUCTION OF THE LAW (1990) ..........::ccccceeeees 15

R. EPSTEIN, FORBIDDEN GROUNDS: THE CASE

AGAINST EMPLOYMENT DISCRIMINATION LAWS

(TODA) .cccesecnscersserrticenininnnininemmmannes 15

EEE EEE

Vil

L. Graglia, United States v. Lopez:

Judicial Review Under The Commerce Clause,

TA TEX. L. REV. 719 (1996) .........ccccsccrssereeeserereeeseneerersss 15

G. GUNTHER & K. SULLIVAN, CONSTITUTIONAL LAW

(13th ed. 1997) .....csccccsecseecereneenensenssnsnsensrensenseassenananneners 15

C. Sunstein, Congress, Constitutional Moments, and

the Cost-Benefit State, 48 STAN. L. REV. 247

(1996) ...ccccceccccscssesssssssesssenseseessresnenssusesseseensersasnensnaensnssess 15

L. TRIBE, AMERICAN CONSTITUTIONAL LAW (3d ed.

No. 03-1619

Supreme Court of the Anited States

GDF REALTY INVESTMENTS, LTD., ET AL.

Petitioners,

v.

GALE A. NorTON, Secretary of the ‘Interior, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

For the Fifth Circuit

BRIEF OF AMICUS CURIAE THE CLAREMONT INSTITUTE

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF THE PETITIONER

ae rrnnninmienenneeenmemmmmmemnntl

INTEREST OF AMICUS CURIAE'

The Claremont Institute for the Study of Statesmanship

and Political Philosophy is a non-profit educational founda-

tion whose stated mission is to “restore the principles of the

American Founding to their rightful and preeminent author-

ity in our national life,” including the principle, at issue in

this case, that We the People delegated to the national

' The Claremont Institute Center for Constitutional Jurisprudence files

this brief with the consent of all parties. The letters granting consent have

been previously filed or are being filed concurrently. No counsel for a

party authored this brief in whole or in part. No person or entity, other

than amicus curiae, its members, or its counsel made a monetary

contribution specifically for the preparation or submission of this brief.

2

government only certain, specifically enumerated powers

and that the bulk of sovereign power, including the police

power at issue here, was reserved to the States or to the

people.

The Institute pursues its mission through academic

research, publications, scholarly conferences, and the

selective appearance as amicus curiae in cases of

constitutional significance. Of particular relevance here, the

Institute has a Center for Local Government, which promotes

the theory and practice of self-government, emphasizing the

themes of limited, constitutional government, federalism,

property rights, and energetic citizenship. In addition, the

Institute has published extensively about the constitutional

limitations on the powers delegated to the national

government, including a book edited by Gordon Jones and

Institute Senior Fellow John Marini entitled The Imperial

Congress: Crisis in the Separation of Powers.

In order to further advance its mission, the Claremont

Institute in 1999 established an in-house public interest law

firm, the Center for Constitutional Jurisprudence. The

Center’s purpose is to further the mission of the Claremont

Institute through strategic litigation, including the filing of

amicus curiae briefs in-cases such as this that involve issues

of constitutional significance going to the heart of the

founding principles of this nation. The Center for Constitu-

tional Jurisprudence has previously participated as amicus

curiae before this Court in related cases addressing the scope

of Congress’s powers under the Commerce Clause: Solid

Waste Agency of Northern Cook Cty. v. U.S. Army Corps of

Engineers, 531 U.S. 159 (2001); and United States v.

Morrison, 529 U.S. 598 (2000).

3

REASONS FOR GRANTING THE WRIT

I. The Federal Government’s Regulation of the Wholly

Intrastate, Non-Commercial Species at Issue Here

Exceeds Congress’s Powers Under the Commerce

—— Clause, Both as Originally Understood and As

Recently Interpreted by this Court.

A. As originally conceived, Congress’s powe. under

the Commerce Clause was limited to the

regulation of interstate trade.

For our nation’s Founders, “commerce” was trade, and

“commerce among the states” was interstate trade, not the

ordinary activities of business enterprises in a single state or

community. See, e.g., Corfield v. Coryell, 6 F. Cas. 546, 550

(C.C.E.D.Pa. 1823) (Washington, J., on circuit) (“Commerce

with foreign nations, and among the several states, can mean

nothing more than intercourse with those nations, and among

those states, for purposes of trade, be the ovject of the trade

what it may”); United States v. Lop. 2, 514 U.S. 549, 585

(1995) (Thomas, J., concurring) (“At the time the original

Constitution was ratified, “commerce” consisted of selling,

buying, and bartering, as well as transporting for these

purposes”). Indeed, in the first major case arising under the

clause to reach this Court, it was contested whether the

Commerce Clause even extended so far as to include

“navigation.” Chief Justice Marshall, for the Court, held that

it did, but even under his definition, “commerce” was limited

to “intercourse between nations, and parts of nations, in all its

branches.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190

(1824); see also Corfield, 6 F. CAS., at 550 (“Commerce . . .

among the several states . . . must include all the means by

which it can be carried on, [including] . . . passage over land

through the states, where such passage becomes necessary to

the commercial intercourse between the states’”’).

The Gibbons Court specifically rejected the notion “that

[commerce among the states] comprehend[s] that commerce,

4

which is completely internal, which is carried on between

man and man in a State, or between different parts of the

same State, and v hich does not extend to or affect other

States.” Gibbons, 22 U.S., at 194 (quoted in Morrison, 529

U.S., at 616 n.7). In other words, for Chief Justice Marshall

and his colleagues, the Commerce Clause did not even

extend to trade carried on between different parts of a state.

The notion that the power to regulate commerce among the

states included the power to regulate other kinds of business

activity such as hunting or trapping (assuming that the

hunting and trapping referenced by the Court of Appeals was

for business rather than recreational purposes), therefore, was

completely foreign to them. And a fortiori, any claim that

the Commerce Clause encompassed a power effectively to

trump local land use regulations and local development

merely because of the presence of a couple of wholly

intrastate species of bugs that have never been articles of

commerce would have been beyond the pale.

This understanding of the Commerce Clause continued

for nearly a century and a half. Manufacturing was not

included in the definition of commerce, held the Court in

United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895),

because “Commerce succeeds to manufacture, and is not a

part of it.” “The fact that an article is manufactured for

export to another State does not of itself make it an article of

interstate commerce ....” IZId., at 13; see also Kidd v.

Pearson, 128 U.S. 1, 20 (1888) (upholding a state ban on the

manufacture of liquor, even though much of the liquor so

banned was destined for interstate commerce). Neither were

retail sales included in the definition of “commerce.” See

The License Cases, 46 U.S. (5 How.) 504 (1847) (upholding

state ban on retail sales of liquor, as not subject to Congress’s

power to regulate interstate commerce); see also A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S. 495, 542,

547 (1935) (invalidating federal law regulating in-state retail

sales of poultry that originated out-of-state and fixing the

5

hours and wages of the intrastate employees because the

activity related only indirectly to commerce).

For the Founders and for the Courts which decided these

cases, regulation of such activities as retail sales,

manufacturing, and agriculture (as well as building

construction, at issue here), was part of the police powers

reserved to the States, not part of the power over commerce

delegated to Congress. See, e.g., E.C. Knight, 156 U.S., at 12

(“That which belongs to commerce is within the jurisdiction

of the United States, but that which does not belong to

commerce is within the jurisdiction of the police power of the

State”) (citing Gibbons, 22 U.S. (9 Wheat.), at 210; Brown v.

Maryland, 25 U.S. (12 Wheat.) 419, 448 (1827); The License

Cases, 46 U.S. (5 How.), at 599; Mobile Co. v. Kimball, 102

U.S. 691 (1880); Bowman v. Railway Co., 125 U.S. 465

(1888); Leisy v. Hardin, 135 U.S. 100 (1890); In re Rahrer,

140 U.S. 545, 555 (1891); Baldwin v. Fish and Game

Comm'n of Mont., 436 U.S. 371 (1978). And, as the Court

- noted in E.C. Knight, it was essential to the preservation of

the States and therefore to liberty that the line between the

two powers be retained:

It is vital that the independence of the commercial

power and of the police power, and the delimitation

between them, however sometimes perplexing,

should always be recognized and observed, for, while

the one furnishes the strongest bond of union, the

other is essential to the preservation of the autonomy

of the States as required by our dual form of

government....

156 U.S., at 13; see also Carter v. Carter Coal Co., 298 U.S.

238, 301 (1936) (quoting E.C. Knight); Garcia v. San

Antonio Metropolitan Transit Auth., 469 U.S. 528, 572

(1985) (Powell, J., dissenting, joined by Chief Justice Burger

and Justices Rehnquist and O’Connor) (“federal overreaching

under the Commerce Clause undermines the constitutionally

6

mandated balance of power between the States and the

Federal Government, a balance sala citall to protect our

fundamental liberties’’).

While these decisions have since been criticized as

unduly formalistic, the “formalism”—if it can be called that

at all—is mandated by the text of the Constitution itself. See,

e.g., Lopez, 514 U.S., at 553 (“limitations on the commerce

power are inherent in the very language of the Commerce

Clause”) (citing Gibbons). And it is a formalism that was

recognized by Chief Justice Marshail himself, even in the

face of a police power regulation that had a “considerable

influence” on commerce:

The object of [state] inspection laws, is to improve

the quality of articles produced by the labour of a

country; to fit them for exportation; or, it may be, for

domestic use. They act upon the subject before it

becomes an article of . . . of commerce among the

States, and prepare it for that purpose. They form a

portion of that immense mass of legislation [reserved

to the States]. . . . No direct general power over these

objects is granted to Congress; and, consequently,

they remain subject to State legislation.

Gibbons, 22 U.S., at 203; see also id., at 194-95

(“Comprehensive as the word ‘among’ is, it may very

properly be restricted to that commerce which concerns more

States than one. . . . The enumeration presupposes something

not enumerated; and that something, if we regard the

language or the subject of the sentence, must be the

exclusively internal commerce of a State”). As this Court

noted in Lopez, the “justification for this formal distinction

was rooted in the fear that otherwise ‘there would be

virtually no limit to the federal power and for all practical

purposes we would have a completely centralized

government.” 514 U.S., at 555 (quoting Schechter Poultry,

295 U.S., at 548).

7

As should be obvious, the expansion of the Endangered

Species Act to the wholly intrastate, non-commercial species

at issue here is not a regulation of “commerce among the

states,” as that phrase was understood by those who framed

and those who ratified the Constitution. GDF Realty seeks

to develop some of its land that exists wholly in the State of

Texas. Land, of course, is the quintessential thing that does

not move in interstate commerce. See Camps Newfound/

Owatonna v. Town of Harrison, Maine, 520 U.S. 564, 609

(1997) (Thomas, J., dissenting).

To be sure, once its development was completed, GDF

Realty planned to sell or lease some of its developed

property to those engaged in retail sales (other portions of its

planned development were destined for residential housing).

Some of the goods sold in those retail outlets may well have

traveled in interstate commerce, but the regulation at issue

here does not address the interstate shipment of goods—the

ESA’s restrictions on the interstate shipment of endangered

species, which are a valid exercise of the Commerce Clause

power, are not at issue here. See 15 U.S.C. § 1538(a)(1)(E)

(making it unlawful to transport endangered species in

interstate or foreign commerce). Nor does the regulation at

issue here address retail sales of goods that have moved in

interstate commerce. It does not address construction of the

buildings in which those retail goods will be sold. It does

not even directly address the preparation of the land on

which those buildings will ultimately be constructed. Rather,

it aims at any activity, without regard to its commercial

nexus, that might cause “harm” to some cave bugs that never

have been articles of commerce, and thereby indirectly

regulates a wholly intrastate business enterprise whose

activity is 4 steps removed from the Founders’ understanding

of “commerce among the states.”

Despite this most tenuous connection to interstate

commerce as originally understood, the Department of

Justice nevertheless takes issue in its opposition to the

8

petition for certiorari with the portion of the Fifth Circuit’s

opinion holding that the mere fact that GDF Realty is a

business is not a sufficient ground for the assertion of federal

regulatory authority over matters having nothing to do with

interstate commerce. GDF Realty v. Norton, Brief of the

United States in Opposition to Petition for Writ of Certiorari,

at 12 n.5. The Department’s repudiation of part of the Fifth

Circuit’s holding—a holding admittedly in conflict with the

D.C. Circuit’s holding in Rancho Viejo, LLC v. Norton, 323

F.3d 1062 (D.C. Cir. 2003), reh’g en banc denied, 334 F.3d

1158 (D.C. Cir. 2003), cert. denied, 124 S.Ct. 1506 (Mar. 1,

2004), reh’g denied, 124 S.Ct. 2061 (April 19, 2004)—alone

warrants this Court’s attention.

Yet even if that aspect of the Fifth Circuit’s decision was

not in conflict with the D.C. Circuit’s decision in Rancho

_ Viejo, the circle-of-life rationale upon which the Fifth Circuit

ultimately based its decision upholding the expansion of the

Endangered Species Act at issue here brings this regulation

no closer to the Founders’ understanding of the Commerce

Clause than does the Department of Justice’s rationale—at

least, if the Commerce Clause is to retain any of the limits

envisioned by our nation’s Founders. The Texas cave bugs

that the federal government seeks to regulate are not articles

of commerce, so the regulations at issue here are readily

distinguishable from regulations designed to protect species

that actually are articles of commerce. See Black Bass Act,

ch. 346, 44 Stat. 576 (1926), (repealed by Act of Nov. 16,

1981, Pub. L. No. 97-79, § 9(b)(2), 95 Stat. 1079 (1981));

Bald Eagle Protection Act, ch. 278, 54 Stat. 250 (1940) (16

U.S.C. 668 et seq.).

Nor can this regulation be sustained as a valid exercise of

Congress’s powers under the Necessary and Proper Clause.

As has long been recognized, that clause gives Congress

power over the means it will use to give effect to its

enumerated powers; it does not serve as an end power unto

itself. See, e.g., Gibbons, 22 U.S. (9 Wheat.), at 187

9

(describing the phrase “necessary and proper” as a

“limitation on the means which may be used”); M’Culloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 324 (1819) (describing

the Necessary and Proper Clause as merely a means clause).

There has to be a regulation of commerce to which Congress

hopes to give effect when it acts pursuant to the Necessary

and Proper Clause, and there is no such regulation here,

because the cave bugs are simply not articles of commerce.

Congress cannot use a Commerce Clause pretext, therefore,

to support its exercise of what is essentially a police power.

Id., at 423. Thus, while it is undoubtedly true that, in today’s

world, the quantum of “commerce among the states” is much

larger than in the founding era, the expansion in quantity

does not give Congress the different qualitative power that it

seeks to exercise here.

Under the original view of the Commerce. Clause,

therefore, this is an extremely easy case, and the fact that the

lower courts are simply refusing to enforce the limits of the

Commerce Clause, particularly in an area of such traditional

State concern as local land regulation and wildlife protection,

warrants this Court’s review.

B. Even under the expanded view of the Commerce

Clause taken in this Court’s modern-era

precedents, the expansion of the Endangered

Species Act at issue here exceeds the outer limits

of the power afforded to Congress.

Even when this Court expanded the original

understanding of the Commerce Clause in order to validate

New Deal legislation enacted in the wake of the economic

emergency caused by the Great Depression, it was careful to

retain certain limits lest the police power of the States be

completely subsumed by Congress.

Thus, in N. L. R. B. v. Jones & Laughlin Steel Corp., this

Court stated that the power to regulate commerce among the

states “must be considered in the light of our dual system of

10

government and may not be extended so as to embrace

effects upon interstate commerce so indirect and remote that

to embrace them, in view of our complex society, would

effectually obliterate the distinction between what is national

and what is local and create a completely centralized

government.” 301 U.S. 1, 37 (1937) (quoted in Lopez, 514

U.S., at 557; Morrison, 529 U.S., at 608). Similarly, Justice

Cardozo noted in Schechter Poultry that “[t]here is a view of

causation that would obliterate the distinction of what is

national and what is local in the activities of commerce.”

294 U.S., at 554 (Cardozo, J., concurring) (quoted in Lopez,

514 U.S., at 567; Morrison, 529 U.S., at 616 n.6).

These reservations were key to this Court’s decisions in

Lopez and Morrison. See Lopez, 514 U.S., at 566; Morrison,

529 U.S., at 608. As in those cases, the expansion of the .

Endangered Species Act at issue here does not regulate the

channels or the instrumentalities of interstate commerce.

Instead, the Court of Appeals based its decision on the claim

that federal regulation of any activity that affected even a

single, wholly intrastate, non-commercial species was

permissible because, due to the interdependence of species,

such harm to a single species, when aggregated with

unrelated harm to all other species (including commercial

species), could reasonably be thought to have a “substantial

effect” on interstate commerce. GDF Realty Investments,

Ltd. v. Norton, 326 F.3d 622, 640 (Sth Cir. 2003), reh "gen

banc denied, 362 F.3d 286 (Sth Cir. 2004). Quite apart from

the fact that one of the unique features of the particular

Species at issue here is that they are not interconnected with

other species, the Fifth Circuit’s rationale, like a ripple of

water spreading throughout an entire pond, would leave

nothing outside the scope of federal power. See Lopez, 514

U.S., at 567. As this Court has made clear, rationales for the

exercise of Commerce Clause power that have no stopping

point, and that as a result would displant State policy-making

authority, cannot be sustained. See id. (rejecting an

if

1]

“inference upon inference” assertion of power that would

“convert congressional authority under the Commerce

Clause to a general police power of the sort retained by the

States”); Morrison, 529 U.S., at 615.

Thus, even under the expanded view of the Commerce

Clause that has been in place since the New Deal, the

expansion of the Endangered Species Act proffered by the

government remains what it would have been for Chief

Justice Marshall: A pretext for the exercise of police powers

by Congress, powers that were and of right ought to be

reserved to the States, or to the people.

Judge Jones’ opinion dissenting from the denial of the

petition for rehearing en banc in this case also highlights

how fundamentally—despite their contradictory reasoning—

the Fifth Circuit’s decision here and. the D.C. Circuit’s

decision in Rancho Viejo are at odds with this Court’s

decision in Lopez, Morrison, and Solid Waste Agency of

Northern Cook County. v. U. S. Army Corps of Engineers,

531 U.S. 159 (2001) (“SWANCC”). The Fifth Circuit

“panel’s ‘interdependent web’ analysis of the Endangered

Species Act,” she wrote, “gives ... subterranean bugs

federal protection that was denied the school children in

Lopez and the rape victim in Morrison.” GDF Realty, 362

F.3d, at 287 (Jones, J., dissenting from denial of petition for

rehearing en banc). Judge Jones properly concluded that “the

panel’s commerce clause analysis is in error,” and later that

the panel’s broad interpretation of the aggregation principle

“would not only sustain every conceivable application of the

ESA, but entirely undercuts Lopez and Morrison.” Id., at

287, 289. See also id. at 292 n.6 (noting that the panel’s

decision is also “contrary” to SWANCC).

As the facts of this case make amply clear, the protection

of the health, safety, and welfare of the people—the

traditional definition of the police power reserved to the

States, see, e.g., South Covington & C. St. R. Co. v. City of

12

Covington, 235 U.S. 537, 546 (1915)—requires a careful

balancing of competing concerns, a balancing that is best left

to the people and _governments-who-will-most directly bear

the consequences of the decision. See, e.g., Escanaba &

Lake Michigan Transp. Co. v. City of Chicago, 107 U.S. 678

(1883) (noting that the police power “can generally be

exercised more wisely by the states than by a distant

authority”). Here, the preservation of some cave bugs is

pitted against the construction of the residential housing and

businesses necessary to the people who would make their

homes in the area surrounding Austin, Texas. See Petn., at

10.

The local governmental authorities had already given full

consideration to (and approved) GDF’s proposed

developments before the. federal government even added

cave bug species to its endangered list. Pet’n at 6. That

approval process required GDF Realty to invest millions of

dollars toward the construction of water lines, wastewater

gravity lines, and other utility infrastructure improvements

which were then deeded to the City of Austin, Texas. Jd.

GDF Realty had deeded portions of its land to the Travis

County government as a highway right-of-way. Jd. And it

had obtained approval for its platt maps and development

plans, id., undoubtedly after undertaking the numerous

environmental and safety studies that are the hallmark of

modern-day land-use planning.

The process described above demonstrates the proper

exercise of the state police powers in action. Given this

Court’s recent solicitude for the sovereignty of the States,

see, e.g., Printz v. United States, 521 U.S. 98 (1997);

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996);

Alden v. Maine, 527 U.S. 706 (1999); College Sav. Bank v.

Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S.

666 (1999); Florida Prepaid Postsecondary Educ. Expense

Bd. v. College Sav. Bank, 527 U.S. 627 (1999), it would be

odd indeed if Congress could intrude upon the powers

13

reserved to the States, and hence on state sovereignty, in the

much more substantial way presented by the expansion of

the Endangered Species Act at issue here.

That does not mean that without comprehensive and

expansive federal regulation, a State, through the exercise of

its police powers, could immunize actions that have a

detrimental effect in other states. Traditional tort and

nuisance law remains available. See, e.g., Brzonkala v.

Virginia Polytechnic Institute and State University, 169 F.3d

820, 840 (4th Cir. 1999), aff'd sub nom, United States v.

Morrison, 529 U.S. 598 (2000); Missouri v. Illinois., 180

U.S. 208 (1901). Even for species that migrate between two

or more States, the States remain free to enter into

agreements to regulate species takes to their mutual benefit.

See, e.g., Virginia v. Tennessee, 148 U.S. 503, 518 (1893)

(describing an agreement to drain a malarial district on the

border between two States as an example of an interstate

agreement that could “in no respect concern the United

States”). And on the chance that such an agreement might

be made to the detriment of other states, the Congressional

consent requirement of the Compacts Clause of Article I,

Section 10 provides a sufficient check. U.S. Const., Art. I,

Sec. 10, cl. 3 (“No State shall, without the consent of

Congress, . . . enter into any agreement or compact with

another State, or with a foreign power”); see also West

Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 27 (1951) (“A

compact is more than a supple device for dealing with

interests confined within a region. . . . [I]t is also a means of

safeguarding the national interes.’ °.

In short, there is as little need for federal regulation here

as there is constitutional authority. That federal officials in

Washington, D.C., might weigh the various police power

concerns differently than the people of Texas provides no

constitutional title for them to do so, especially where, as

here, the benefits and costs on both sides of the health, safety

and welfare equation are almost exclusively borne by the

14

people of Texas. Our Constitution leaves such decisions to

the States for good reason. The inference-upon-inference

reasoning of the federal government and the Court of

Appeals below should not be allowed to alter that

fundamental constitutional structure.

C. This Court Should Grant the Writ of Certiorari in

order to repudiate the aggregation principle of

Wickard vy. Filburn, thereby removing from

Congress and the regulatory agencies the remotely

colorable claim to unconstitutional assertions of

power that it provides.

More fundamentally, the decision by the Court of

Appeals below demonstrates just how pernicious the

combination of the aggregation principle from Wickard v.

Filburn, 317 U.S. 111, 127-28 (1942), and the substantial

effects test discussed in Lopez really is. Standing alone, the '

substantial effects test essentially converts the Necessary and

Proper Clause from a means clause to an ends clause, and

therefore renders it constitutionally suspect. See Lopez, 514

U.S., at 584-85 (Thomas, J., concurring); M’Culloch, 17 U.S.

(4 Wheat.), at 423; Carter Coal, 298 U.S., at 317 (Hughes,

C.J., separate opinion). But when combined with Wickard’s

aggregation principle, there is absolutely nothing over which

clever lawyers and bureaucrats in federal regulatory agencies

cannot stake some claim of regulatory power, as this case

amply demonstrates.

Striking down the expanded interpretation of the

Endangered Species Act at issue here is not enough. Lopez

has been on the books for almost ten years, yet federal

agencies have persisted in asserting jurisdiction where, under

any reasonable reading of Lopez, they have none. The

potential for unlimited and abusive assertions of power is the

reason that many constitutional scholars over the past half

century have criticized Wickard as extra-constitutional, even

those who favor the resulting expansion in federal powers.

15

See, e.g., R. BERGER, FEDERALISM: THE FOUNDERS' DESIGN

148-51 (1987); R. BORK, THE TEMPTING OF AMERICA: THE

POLITICAL SEDUCTION OF THE LAW 56-57 (1990) (explaining

that Wickard “abandoned” aspects of the Constitution that

defined and limited national power); R. EPSTEIN, FORBIDDEN

GROUNDS: THE CASE AGAINST EMPLOYMENT

DISCRIMINATION Laws 139 (1992) (contending that Wickard

was a “manifestly erroneous” decision that left “no

conceivable stopping point for the federal commerce

power’); L. Graglia, United States v. Lopez: Judicial Review

Under The Commerce Clause, 74 TEx. L. REV. 719, 745

(1996) (referring to Wickard as a “notorious” decision); C.

Sunstein, Congress, Constitutional Moments, and the Cost-

Benefit State, 48 STAN. L. REV. 247, 253 & n.18 (1996)

(describing Wickard as a “repudiation” of the original

Constitution that gave the national government “something

close to general police powers”); B. Ackerman, Liberating

Abstraction, 59 U. Cut. L. REv. 317, 322, 324 (1992)

(describing Wickard as a “wrenching break with the

constitutional past,” ringing the “death-knell for traditional

notions of limited national govern-ment”); cf. L. TRIBE,

AMERICAN CONSTITUTIONAL LAw, Vol. 1, p. 831 n.29 (3d

ed. 2000) (describing hypothetical “sham” legislation that

could result from the combination of the substantial effects

test and the aggregation principle); G. GUNTHER & K.

SULLIVAN, CONSTITUTIONAL LAW 191 (13th ed. 1997)

(suggesting that Wickard “in effect abandon[ed] all judicial

concern with federalism-related limits on congressional

power”). The expansion of federal power that has followed

on the Wickard decision and the concomitant retraction ‘of

liberty, not just in this arena but in numerous others, suggests

that the time is long overdue for a reversal of that decision.

See Lopez, 514 U.S., at 585 (Thomas, J., concurring).

Nothing short of a full repudiation of that decision will

suffice to rebuild the limits of the Commerce Clause and to

reign in a federal government that continues to believe that

the Constitution sets no bounds on its power.

16

II. The Fifth Circuit’s Rationale Conflicts with that of

the D.C. Circuit in Rancho Viejo v. Norton.

In his opinion dissenting from the denial of the petition

for rehearing en banc in Rancho Viejo, Judge Sentelle noted

that the reasoning upon which the D.C. Circuit grounded its

ruling was “conspicuously in conflict” with the reasoning of

the Fifth Circuit in the case below. See Rancho Viejo, 334

F.3d, at 1159 (Sentelle, J., dissenting from denial of petition

for rehearing en banc). There are several grounds of

disagreement that merit this Court’s attention.

First, and perhaps most fundamentally, the two courts

disagree as to whether the prohibition on the “take” of

wholly-intrastate, non-commercial species can be viewed as

aimed at economic activity simply because the particular

litigant is an economic actor. The D.C. has held that it could,

while the Fifth Circuit held that it could not. Compare

National Ass’n of Home Builders v. Babbitt, 130 F.3d 1041,

1049 (D.C. Cir. 1997) with GDF Realty, 326 F.3d, at 634-35.

Second, the D.C. Circuit and the Fifth Circuit disagree as

to whether this Court’s decision in United States v. Salerno,

481 U.S. 739 (1987), prevents a facial challenge on

Commerce Clause grounds to any statute that reaches some

commercial activity. As Judge Roberts noted in his dissent

from the denial of the petition for rehearing en banc in

Rancho Viejo, “the approach [regarding Salerno] of the panel

in this case . . . now conflicts with the opinion of [the Fifth

Circuit] ... .” See Rancho Viejo, 334 F.3d, at 1160 (Roberts,

J., dissenting from denial of petition for rehearing en banc)

(quoting GDF Realty, 326 F.3d, at 636). The D.C. Circuit

relied upon Salerno despite the obvious inconsistency

between Salerno and Lopez. The Fifth Circuit, in contrast,

rejected the applicability of Salerno in the post-Lopez

Commerce Clause context. GDF Realty, 326 F.3d, at 635-36.

The two circuit courts also disagree over the application

of this Court’s aggregation principle. While the D.C. Circuit

17

aggregates all of the activity engaged in by the regulated

litigant, Rancho Viejo, 323 F.3d, at 1070, the Fifth Circuit

held below that “[iJn light of Lopez and Morrison the key

question for purposes of aggregation is whether the nature of

the regulated activity is economic,” GDF Realty, 326 F.3d, at

630. The Fifth Circuit recognized that this Court in

“Morrison noted, for aggregation purposes, the importance of

the economic nature of the regulated activity” when it

specifically acknowledged that it had heretofore aggregated

intrastate activity “only where the activity is economic in

nature.” GDF Realty, 326 F.3d, at 630 (emphasis in original)

(quoting Morrison, 529 U.S., at 613 (emphasis added)). To

allow aggregation of “noneconomic and noncommercial

activity” “so long as, if aggregated,” there would be “a

substantial effect” on commerce, held the Fifth Circuit,

“would vitiate Lopez and Morrison’s seeming requirement

that the intrastate instance of activity be commercial.” GDF

Realty, 326 F.3d, at 638. “Lopez and Morrison stand against

such a proposition.” Jd.

The D.C. Circuit, in contrast, relying on the identical

passage from Morrison, implied that this Court had rejected a

categorical rule, thus permitting the aggregation of non-

economic activity in order to demonstrate a substantial effect

on commerce. Rancho Viejo, 323 F.3d, at 1071-72; see also

United States v. Rodia, 194 F.3d 465, 481 (3rd Cir. 1999)

(“the specific activity that Congress is regulating need not

itself be objectively commercial, as long as it has a

substantial effect on commerce”); cf. United States v.

Bongiorno, 106 F.3d 1027, 1031 (1st Cir. 1997) (noting that

the Court consistently has interpreted the Commerce Clause

“to include transactions that might strike a lay person as

‘noncommercial’”’).

The Fifth Circuit’s position is not only a better reading of

Morrison, but it is in accord with decisions of the First,

Second, Third, Fourth, Ninth, and Eleventh Circuits as well.

See United States v. Zorilla, 93 F.3d 7, 8 (1st Cir. 1996);

18

United States v. Holston, 343 F.3d 83, 88 (2nd Cir. 2003);

Freier v. Westinghouse Electric Corp., 303 F.3d 176, 200-03

(2nd Cir. 2002), cert. denied. 538 U.S. 998 (2003) ; United

States v. Whited, 311 F.3d 259, 271 (3rd Cir. 2002), cert.

denied, 538 U.S. 1065 (2003) ; Gibbs v. Babbitt, 214 F.3d

483, 491 (4th Cir. 2000); United States v. McCoy, 323 F.3d

1114, 1119-20 (9th Cir. 2003); United States v. Cortes, 299

F.3d 1030, 1035 (9th Cir. 2002); United States v. Ballinger,

312 F.3d 1264, 1270 (11th Cir. 2002).

Finally, the two circuit courts disagree with respect to

which effects on interstate commerce are simply too

attenuated to support the exercise of Commerce Clause

power. The Fifth Circuit below rejected the government’s

claim that Cave Bugs “play a role in interstate commerce”

because “some scientists” “have traveled to Texas” to study

the Cave Bugs and “articles about the Cave Bugs have been

published in scientific journals.” GDF Realty, 326 F.3d, at

637. In stark contrast, and despite the admonition by this

Court in SWANCC that even a billion dollar bird hunting and

watching tourism trade was likely too attenuated a

connection to interstate commerce to sustain the

government’s “migratory bird” rule, 131 U.S., at 166, the

:».C. Circuit in Rancho Viejo, following the Fourth Circuit’s

decision in Gibbs lent its support to (or at least did not

foreclose) such contentions. Rancho Viejo, 323 F.3d, at 1067

n. 2 (citing Gibbs, 214 F.3d at 493-95).

Six circuit judges in the case below have likewise

acknowledged the extent of the disagreement between the

two circuits. On Friday, February 27, 2004—the very day

that this Court considered but denied the petition for writ of

certiorari in Rancho Viejo—the Fifth Circuit released its

decision in this case denying the petition for rehearing en

banc that had been pending for nearly a year, confirming

rather than ameliorating the split in rationales that has

developed among the Circuit Courts. Particularly significant

is the lengthy opinion by Circuit Judge Edith Jones—joined

19

by Circuit Judges Grady Jolly, Jerry Smith, Harold DeMoss,

Edith Brown Clement, and Charles Pickering—dissenting

from the denial of the petition for rehearing en banc.

In her opinion, Judge Jones and five other judges

explicitly referenced the circuit split that has developed

between the reasoning of the Fifth Circuit in this case and the

D.C. Circuit in Rancho Viejo.

Judge Jones stated that in the GDF Realty panel decision,

the Fifth Circuit “panel correctly determined, unlike other

courts, that the ‘regulated activity’ under the ESA is Cave

Species takes, not the appellants’ planned commercial

development of the land.” GDF Realty, 362 F.3d, at 288

(first emphasis added). The reference to “other courts” that

had reached the opposite conclusion is expressly to the

Rancho Viejo case, which found, as noted by Judge Jones,

“that the regulated activity was not the ESA take but rather

the ‘construction of a commercial housing development.’”

Id., at 288-89 (citing Rancho Viejo).

Judge Jones’ opinion explains that the Fifth Circuit

panel’s constitutionally-mandated analysis—that the

Commerce Clause analysis must center on the actual Cave

Species take rather than the peripheral planned commercial

development—is at odds with the Fifth Circuit’s conclusion.

The result (which would likewise occur if the D.C. Circuit’s

constitutionally-impermissible and conflicting analysis were

employed) is “constitutionally limitless” and “a remote,

speculative, attenuated, indeed more than improbuble

connection to interstate commerce.” Id., at 287.

Taken together, a majority of the active judges on the

Fifth Circuit—the 3 panel judges, plus the six judges joining

Judge Jones’ opinion dissenting from the denial of the en

banc rehearing petition—has adopted reasoning of

fundamental constitutional significance which is in direct

conflict with the D.C. Circuit’s decision in Rancho Viejo,

and has expressly acknowledged the split between the

20

circuits with respect to this critical reasoning.

These conflicts in rationale provide the Court with a

needed opportunity to clarify the Commerce Clause analysis

set forth in Lopez and Morrison, and thus warrant certiorari.

CONCLUSION

Certiorari is necessary here to address fundamental

elements of this Court’s post-Lopez Commerce Clause

analysis, in the specific context of whether Congress has the

authority to regulate wholly intrastate, non-commercial

species, and the local activities that impact their habitats.

Accordingly, this Court should grant the petition for a writ of

certiorari. And if certiorari is granted in this case, this Court

should revisit its recent denial of certiorari in the Rancho

Viejo case, so that the Rancho Viejo case can be heard—or at

least held, see Forgett v. United States, 390 U.S. 203 (1968);

United States v. Ohio Power Co., 351 U.S. 980 (1956)—and

resolved simultaneously with the GDF Realty case now

under consideration.

Respectfully submitted,

Edwin Meese III John C. Eastman

214 Massachusetts Ave.,N.E. | Counsel of Record

Washington, D.C. 20002 The Claremont Institute Center

for Constitutional Jurisprudence

c/o Chapman University

School of Law

One University Drive

Orange, CA 92866

(714) 628-2587

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

DATED: September 3, 2004