Wednesday, April 6, 2011

Observations From the Back Row, 4/6/11

By Rich Kozlovich

Ninth Circuit Rejects Commerce Clause Challenge to Endangered Species Act.  A federal appeals court has rejected a conservative legal group's argument that federal protections of an endangered species violate the Commerce Clause.

A unanimous panel of the U.S. Court of Appeals for the Ninth Circuit upheld the federal protections of delta smelt, a small fish endemic to California, against challenges from the Pacific Legal Foundation, which argued that the protections diminished water exports from the Delta.

The federal protections of the fish were created pursuant to the Endangered Species Act. The Pacific Legal Foundation argued that the fish are "purely intrastate species," with no "commercial value," and therefore the federal government regulations to protect the fish were "invalid exercises of constitutional authority [under the Commerce Clause]."

The Ninth Circuit panel disagreed, writing in part, that “Congress has the power to regulate purely intrastate activity long as the activity is being regulated under a general regulatory scheme that bears a substantial relationship to interstate commerce." Citing the Eleventh Circuit, the panel ruled that "the Endangered Species Act is a general regulatory statute bearing substantial relation to commerce."

My Take - How much do you want to bet the founding fathers (you know, the people who wrote the Commerce Clause) didn’t believe that.  Below are links that list the insanity of ESA over the last week.  And this wasn't all of them.  RK

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