One Leg to Stand On: The Treaty Power and Congressional Authority for the Endangered Species Act after United States V. Lopez

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One Leg to Stand On: The Treaty Power and Congressional Authority for the Endangered Species Act After United States v. Lopez^

"I have a question for you," said a young associate at a law firm where I clerked during the summer of 1996. "Can you explain to me what cave beetles and blind salamanders have to do with interstate commerce?"

It does not tax the imagination to picture a federal judge asking exactly the same question in the very near future. Since its passage in 1973, the Endangered Species Act1 (ESA) has been a lightning rod for controversy and criticism. Developers have fought against those who would restrict the uses of their property based on the presence of federally protected wildlife, while environmentalists have fought to preserve native habitats for rare species that teeter on the brink of extinction.2 At issue often have been the limits the federal government can impose upon private property owners' use of their own land for the claimed greater good of preserving the diversity of the national native environment.3

Today, more than the end results of the far-reaching federal legislation are under attack. The very basis for congressional authority to promulgate national legislation for the protection of endangered wildlife and their habitats faces a potential challenge. For more than sixty years, the Supreme Court interpreted the Commerce Clause of the U.S.

Constitution,4 one of the major foundations of congressional authority for the ESA, as an expansive grant of power to Congress. Since the time of early Commerce Clause cases, the Court has shown little reluctance to expansively interpret the authority this constitutional power gives Congress, and, especially since the New Deal era, the Court has often held that the Commerce Clause authorizes Congress to regulate and control actions which seem far removed from interstate commerce. Indeed, in the recent past, Congress had apparently become so confident of its power to pass national legislation under the ambit of the Commerce Clause that some of the legislation it did pass contained only scant mention of the intention to regulate interstate commerce, if any mention was included at all.5 Congress could feel secure that the Supreme Court would find a "rational basis"6 for the connection between the regulated act and interstate commerce and in so doing would find the legislation to pass constitutional muster. This security evaporated with the Court's decision in United States v. Lopez,7 in which the Court for the first time in almost sixty years overturned a congressional act it found to be beyond the power granted to Congress under the Commerce Clause. Suddenly, the validity of a long list of previous congressional acts came into question.8

The ESA is on that list.9 While some parts of the Act, such as the prohibitions of the trade or selling of animals protected under the ESA's definitions,10 arguably have a clear connection to interstate commerce, other portions of the Act seem to be much less strongly connected to this essential requirement. The crucial ability to protect the habitats of endangered species by regulating the uses of private property on which those species exist is particularly vulnerable to a Lopez-based attack. Without this power, the ability of the ESA to accomplish its stated goals is doubtful. As the implications of Lopez are played out in the lower federal courts, and as more congressional acts are found not to meet the suddenly stricter standards developed by the Court in Lopez,11 defenders of the ESA would be well advised to begin looking for alternative bases for congressional authority for the protection of threatened wildlife before the judicial hatchet falls.

This Note explores the bases for congressional authority to promulgate the ESA. Part I begins with an introduction to the Act itself, including the history of its passage and the goals it was meant to accomplish. An understanding of these goals is necessary for the purpose of exploring ways in which Congress can legitimately legislate to accomplish them. …