In spi­der case, fed­eral power spins its ever-grow­ing web

Honolulu Star-Advertiser - - INSIGHT - GE­ORGE F. WILL ——— Ge­orge F. Will writes for The Wash­ing­ton Post. Reach him at georgewill@wash­

Ablind spi­der creep­ing through Amer­ica’s judicial thicket might be head­ing to the Supreme Court, which will have to de­cide if the con­tent­ment or even the sur­vival of the Bone Cave Har­vest­man spi­der species, which lives only in two cen­tral Texas coun­ties, is any of the fed­eral gov­ern­ment’s busi­ness. If it is, what isn’t?

The U.S. Fish and Wildlife Ser­vice (USFWS), which ad­min­is­ters the En­dan­gered Species Act, is blind to the lim­its of its im­perium, which it thinks en­com­passes telling John Year­wood what he can and can­not do on the ranch that has been in his fam­ily since 1871. To stymie the USFWS, Year­wood must sur­mount, among other things, a prece­dent in­volv­ing Roscoe Fil­burn, the Ohio farmer whose 1942 loss in the Supreme Court mocked the doc­trine that the fed­eral gov­ern­ment is one of limited, be­cause enu­mer­ated, pow­ers.

Fil­burn was mind­ing what he thought was his busi­ness when Wash­ing­ton taught him that the Con­sti­tu­tion’s Com­merce Clause (“Congress shall have power to … reg­u­late com­merce … among the sev­eral states”) means that al­most ev­ery­thing is the fed­eral gov­ern­ment’s busi­ness. To sta­bi­lize prices, the gov­ern­ment set pro­duc­tion quo­tas not only for wheat sold into in­ter­state com­merce but for wheat con­sumed on the farm for an­i­mal feed. Fil­burn ex­pressed his dis­sent by pro­duc­ing 269 bushels in ex­cess of his quota and re­fus­ing to pay the fine.

His in­sub­or­di­na­tion reached the Supreme Court, which by then was thor­oughly def­er­en­tial to the New Deal’s ca­pa­cious the­ory of fed­eral power. The court held that Congress could reg­u­late even Fil­burn’s wheat that never reached in­ter­state com­merce, be­cause that wheat “sup­plies a need of the man who grew it which would oth­er­wise be re­flected by pur­chases in the open mar­ket. Home-grown wheat in this sense com­petes with wheat in com­merce.” Seventy-five years on, some re­cent de­ci­sions have brought Com­merce Clause ju­rispru­dence closer to the Framers’ in­ten­tion as pre­sented by Chief Jus­tice John Mar­shall in McCul­loch v. Mary­land (1819). The clause re­quires a “plain” con­nec­tion, not merely at­ten­u­ated chains of in­fer­ences, be­tween a con­gres­sional act and an enu­mer­ated power. Fur­ther­more, re­cent de­ci­sions re­quire not only that a fed­eral statute per­tain to “ac­tiv­i­ties hav­ing a sub­stan­tial re­la­tion to in­ter­state com­merce,” but also that the statute pass muster un­der the Nec­es­sary and Proper Clause: Congress may “make all laws … nec­es­sary and proper” to ex­e­cut­ing enu­mer­ated pow­ers. A statute, Jus­tice Clarence Thomas has said, must be “ap­pro­pri­ate,” bear­ing an “ob­vi­ous, sim­ple, and di­rect re­la­tion” to an enu­mer­ated power.

A lower court has sided with the USFWS against Year­wood, dog­mat­i­cally pos­tu­lat­ing that all species are “in­ter­de­pen­dent.” There­fore even the tini­est bit of the ecosys­tem is pre­sump­tively im­pli­cated in po­ten­tially sub­stan­tial ef­fects on in­ter­state com­merce.

So, Year­wood, who hith­erto made his prop­erty avail­able cost-free to 4-H, church and mil­i­tary groups for camp­ing, horse­back rid­ing and other ac­tiv­i­ties, has stopped this, and even ceased clear­ing brush to re­duce the risk of snakes and fires, lest he be sub­ject to fed­eral prose­cu­tion for dis­turb­ing, harm­ing or en­dan­ger­ing the spi­ders. In­deed, such is the fed­eral gov­ern­ment’s un­sleep­ing so­lic­i­tude for the spi­ders, it says they must be pro­tected from other bugs, such as fire ants. Rev­er­ence for na­ture ev­i­dently re­quires pre­vent­ing nat­u­ral com­pe­ti­tions. Alex Kozin­ski of the U.S. Court of Ap­peals for the 9th Cir­cuit has writ­ten that mod­ern Com­merce Clause de­ci­sions make one won­der why it is not called the “Hey, you-can-do-what­ever-youfeel-like Clause.” So far, the spi­der story — the ap­pli­ca­tion of the En­dan­gered Species Act to an en­tirely in­trastate species that is nei­ther bought nor sold nor traded in in­ter­state com­merce — demon­strates that fed­eral power, like kudzu, will ex­pand ev­ery­where and into ev­ery­thing un­til it is stopped.

The Supreme Court can stop it if the spi­der case gets there. The court can ap­ply its 2005 rul­ing that con­gres­sional reg­u­la­tion of in­trastate, non­com­mer­cial ac­tiv­ity is proper only when the ac­tiv­ity is an “es­sen­tial part of a larger reg­u­la­tion of eco­nomic ac­tiv­ity, in which the reg­u­la­tory scheme could be un­der­cut un­less the in­trastate ac­tiv­ity were reg­u­lated.” Fur­ther­more, in 2012, while Chief Jus­tice John Roberts was ir­ri­tat­ing con­ser­va­tives as he saved the Af­ford­able Care Act by cre­atively con­stru­ing some of its pro­vi­sions, he si­mul­ta­ne­ously held that even a nec­es­sary ex­er­cise of power un­der the Com­merce Clause is not proper if it “would work a sub­stan­tial ex­pan­sion of fed­eral power.” The blind spi­der might make other courts, and the rest of the gov­ern­ment, see the Supreme Court’s 1995 rul­ing that the gov­ern­ment may not “con­vert con­gres­sional Com­merce Clause author­ity to a gen­eral po­lice power of the sort held only by the states.”

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