Flies, spiders, toads, wolves, and the constitutionality of the Endangered Species Act's take provision.

I.  INTRODUCTION
II. THE REHNQUIST COURT'S RESURRECTION OF "OUR FEDERALISM"
    A. United States v. Lopez: New Limits on the Commerce Clause
    B. United States v. Morrison: Reinforcing the New Commerce Clause
       Limits
    C. Solid Waste Agency of Northern Cook County v. United States Army
       Corps of Engineers: Commerce Clause Restrictions as Statutory
       Interpretation
III. THE CONSTITUTIONALITY OF THE ESA's TAKE PROVISION
     A. The Delhi Sands Flower-Loving Fly and the Biodiversity Defense
     B. The Commercial Effects of Red Wolves and the Importance of a
        Comprehensive Scheme
     C. The Texas Cave Species and the Comprehensive Scheme
        Principle (Again)
     D. The Arroyo Southwestern Toad and Commercial Land Development
IV. WOULD THE SUPREME COURT UPHOLD THE TAKE REGULATION?
    A. The Commercial Nexus
       1. The Commercial Effects of Listed Species
       2. The Commercial Nature of Regulated Take
       3. The Commercial Nature of the ESA's Comprehensive Scheme
    B. Statutory Links to Interstate Commerce
    C. The Proper Scope of Aggregation and the Attenuation Principle
V.  CONCLUSION
VI. EPILOGUE

I. INTRODUCTION

The Endangered Species Act (ESA) (1) has become the bete noir of property rights activists, states' rights enthusiasts, and the neo-conservative crowd. The Act has been pilloried as inflexible, draconian, and environmental overkill. (2) A poster child for congressional deregulators, the ESA has become a constant target of legislative reformers. (3)

But the ESA has remained surprisingly impervious to legislative amendment. And in truth, the ESA is actually not nearly as inflexible or draconian as its critics complain. The Clinton Administration made several administrative changes that made implementation of the statute quite economically sensitive. (4) Moreover, a close study of on-the-ground implementation would reveal that biological consultation, required of federal activities adversely affecting listed species, (5) is frequently concerned with balancing economic costs against species protection. (6) Nevertheless, the calls for ESA reform continue unabated. (7)

The ESA's critics certainly have not limited their attacks on the statute to the congressional arena, however. Litigation aimed at disabling various aspects of ESA implementation has been commonplace as well. (8) In the most celebrated case, advocates of increased timber harvest on public land challenged the application of the statute's take provision to habitat destruction. (9) The ESA's take provision is especially controversial because it is not limited to restricting the activities of the federal government but includes limits on private property as well. (10) But a divided Supreme Court surprisingly upheld the challenged regulation in 1995. (11) As a result, ESA critics shifted their focus from challenging the administrative interpretation of the statute to challenging its constitutionality.

As the Rehnquist Court has narrowed the basis for federal Commerce Clause regulation, (12) the ESA has become vulnerable to constitutional challenge because the basis for species protection is not exclusively commercial in nature, but is instead a mixture of philosophy, morality, aesthetics, and utility. (13) Although the statute is widely defended on moral and aesthetic grounds, (14) the utilitarian argument for protecting endangered species is actually quite strong if understood to include more than just the commercial, medicinal, or recreational uses of particular species and to encompass the role of species as indicators of the health of ecosystems necessary for human health and welfare. (15) However, this "canary-in-the-coal-mine" function is often subsumed by moral and aesthetic claims for species protection, making it seem that the ESA fulfills only noncommercial functions. (16) This perception has encouraged ESA opponents to mount constitutional challenges to the application of the Act's take provision against the activities of various private landowners.

In a series of cases, discussed in Section III of this Article, these opponents alleged that the ESA's take provision was an unconstitutional exercise of the Commerce Clause power. Their efforts have yet to bear fruit, however, as all four appellate decisions--from three different courts of appeals--rejected their contentions. (17) But two of the decisions drew dissents from well-known "conservative" judges. (18) Moreover, the circuits have been unable to agree as to why the ESA's take provision is constitutional, supplying several different rationales. (19) Thus, Supreme Court review of the issue is not out of the question, despite the lack of a circuit split, particularly in this era in which the Court has revolutionized the constitutional federal-state balance. Referring to this revolution as a reinvigoration of "Our Federalism," (20) the Court has struck down federal legislation for exceeding the Commerce Clause authority for the first time since the New Deal. (21)

In this Article, we consider the fate of the ESA's take provision in this new judicial era. Section II examines the federalism revolution created by the Rehnquist Court over the past decade. Section III analyzes the four circuit court decisions on the constitutionality of the ESA's take provision. Section IV then considers the likelihood of the various rationales adopted by the circuits being accepted by the Rehnquist Court, focusing especially on the concurrence of Justice Kennedy in United States v. Lopez (Lopez), (22) the case that initiated the Court's modern federalism revolution.

The Article concludes that the Court would have little difficulty in upholding the Commerce Clause basis for the ESA where either the particular species or regulated take has substantial effects on commerce. However, these justifications would leave many species and some kinds of take outside the permissible reach of the ESA. A justification that would uphold the take regulation with respect to all listed species was provided by both the Fourth and Fifth Circuits, which ruled that the commerce necessary to sustain ESA regulation was in the statute's comprehensive economic regulatory scheme. We think that, while the matter is certainly not free from doubt, the Court would sustain this approach, since Justice Kennedy has indicated that the purpose or design of a statute can supply the requisite commerce nexus, (23) and regulation of wildlife or endangered species is certainly not an area traditionally of exclusive state concern. (24)

II. THE REHNQUIST COURT'S RESURRECTION OF "OUR FEDERALISM"

Until 1995, there was little question that the ESA was constitutional. The statutory findings stated that "economic growth and development untempered by adequate concern and conservation" were a primary cause of species extinctions, (25) and the ESA's legislative history indicated that "the pressures of trade" threatened fish, wildlife, and plants, (26) seeming to place the Act squarely within Congress's Commerce Clause power. (27) The Supreme Court had not struck down a federal statute as being in excess of the Commerce Clause since the New Deal, (28) sustaining regulation of intrastate coal mining, (29) intrastate credit transactions, (30) restaurants using interstate supplies, (31) inns catering to interstate guests, (32) and even production of wheat consumed on-farm. (33) In 1981, the Court upheld, against a Commerce Clause attack, the Surface Mining Control and Reclamation Act, (34) on the ground that Congress could rationally conclude that the regulation of private land strip mining was necessary to control adverse effects on interstate commerce due to "air or water pollution, or other environmental hazards." (35) Whatever limits there were on Commerce Clause authority seemed theoretical, mostly because the Court as long ago as 1942 had sanctioned "aggregation" of economic effects to produce an effect on interstate commerce, meaning that the cumulative effects of many others similarly situated may be accumulated to produce an effect on interstate commerce. (36) There were even reputable academic suggestions that the Court completely eschew Commerce Clause review of federal statures. (37)

The world changed abruptly in 1995, however, when the Court decided that the Gun-Free School Zones Act of 1990 (GFSZA) (38) exceeded the Commerce Clause power.

A. United States v. Lopez: New Limits on the Commerce Clause

Congress enacted and President George H.W. Bush signed the GFSZA in 1990. (39) The Act made it a federal crime to knowingly possess a firearm in a school zone, which the stature defined as "within a distance of 1,000 feet from the grounds of a public, parochial, or private school." (40) In 1992, a senior at a San Antonio, Texas high school brought a concealed .38 caliber handgun to school and was charged with violating the GFSZA. (41) After he was indicted, he moved to dismiss the charges on the ground that the GFSZA violated the Commerce Clause, but the district court denied his motion, ruling that the business of education affects interstate commerce. (42) The defendant was subsequently convicted and sentenced to six months in jail and two years supervised release. (43) He appealed to the Fifth Circuit, which reversed the conviction and struck down the statute, holding that the GFSZA had insufficient congressional findings and legislative history to support Commerce Clause authority. (44) The Supreme Court granted certiorari and affirmed the Fifth Circuit in Lopez, its first decision striking down a federal statute since the New Deal. (45)

Chief Justice Rehnquist wrote the majority opinion for a sharply divided court, which split five to four. (46) He began by announcing "first principles" of federalism: the Constitution's granting the federal government powers that are "few and defined"--in contrast to the authorities of the states which are "numerous and indefinite"--in order to protect fundamental liberties and reduce the risk of tyranny. (47) Retracing the Court's Commerce Clause jurisprudence, (48) the Chief Justice identified three broad categories of regulation authorized by the Commerce Clause: 1) the use of the channels of interstate commerce, such as using interstate transportation routes; 2) the protection of the instrumentalities of interstate commerce or persons or things in interstate commerce, such as proscribing theft of goods destined for interstate shipment; and 3) intrastate activities having a substantial effect on interstate commerce. (49) The latter category--which Chief Justice Rehnquist emphasized required a substantial effect, not just any effect (50)--was the focus of judicial attention concerning the GFSZA, as it is with respect to the take provision of the ESA.

Chief Justice Rehnquist announced that there were four factors to consider in deciding whether an intrastate activity had a substantial effect on interstate commerce. (51) He round the GFSZA lacking on all counts. First, the statute's prohibition of gun possession in school zones had nothing to do "with commerce or any sort of economic enterprise." (52) The Court went on to characterize all its previous decisions upholding Commerce Clause regulation as involving economic activity that substantially affected interstate commerce. (53) However, significantly in terms of the constitutionality of the ESA's take provision, the Court did note that federal regulation of noncommercial activities was constitutionally permissible if the statute was "an essential part of a larger regulation of economic activity" that could be undercut if the intrastate activity was not regulated. (54) But Chief Justice Rehnquist concluded, without much analysis, that the prohibition on gun possession was not part of such a comprehensive scheme. (55)

Second, the legislative gun prohibition contained no internal jurisdictional limit guaranteeing an effect on interstate commerce. (56) Third, Congress made no findings demonstrating the link between gun possession in school zones and effects on interstate commerce. (57) Finally, the government's litigation argument, which did attempt to make such a link, was too attenuated, requiring the piling of "inference upon inference" to produce the requisite effect. (58) The Chief Justice suggested that if the Court were to accept the government's theory of effect, (59) the result would make it "difficult to perceive any limitation on federal power," destroying the important distinction between what is "truly national and what is truly local." (60)

Justice Kennedy, joined by Justice O'Connor, concurred. (61) Because these two justices supplied the deciding votes to overturn the GFSZA's ban of gun possession, the concurrence deserves close scrutiny. Justice Kennedy began by observing that the history of Commerce Clause jurisprudence "counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power." (62) He noted that the judicial history of the Commerce Clause was "not marked ... by a coherent or consistent course of interpretation." (63) From the history he drew two lessons: 1) "content-based" boundaries (like the manufacturing-commerce dichotomy adopted by the Court in United States v. E.C. Knight Co. (64)) alone are insufficient to draw Commerce Clause limits, and 2) stare decisis should be applied vigorously when the "essential principles" of congressional power are at issue. (65)

Despite these caveats, Justice Kennedy agreed with the majority opinion that the GFSZA was beyond the commerce power. He thought that federalism, "the unique contribution of the Framers to political science and political theory," (66) could not depend solely upon the political branches of government, since "momentary political convenience" could undermine the federal balance which is an "essential ... part of our constitutional structure and plays a vital role in securing [individual] freedom." (67) Because he agreed that neither Lopez nor his gun possession had commercial character, and since neither the "purposes nor the design" of the GFSZA's gun prohibition had a proper "commercial nexus," (68) the statute overreached.

While acknowledging that the interconnectedness of the modern world gave commercial consequences to almost any conduct, Justice Kennedy counseled that the Court had not "yet" extended the Commerce Clause that far. (69) Where legislation attempted to reach beyond commercial activity "in the ordinary and usual sense of the term," the proper judicial inquiry was to ask whether the statute intruded upon an area of traditional state control which, according to Justice Kennedy, was an area to which "States lay claim by right of history and expertise." (70) This judicial role was justified, he maintained, because otherwise the states could lose their important roles as "laboratories for experimentation," in this case by displacing state authority with "an invisible federal zone extending 1,000 feet beyond the (often irregular) boundaries of the school property." (71) This physical preemption would produce federal encroachment on state judgment, causing the federal-state boundaries to "blur," making political accountability "illusory." (72) Since the GFSZA concerned education, an area of traditional state regulation, Justice Kennedy concluded that the principles of federalism required state control, especially absent a strong nexus with the "commercial concerns that are central to the Commerce Clause." (73)

B. United States v. Morrison: Reinforcing the New Commerce Clause Limits

Congress enacted the Violence Against Women Act (VAWA) (74) in 1994 to give federal civil remedies to victims of gender-motivated crimes. (75) In September 1994, a female student at Virginia Tech was allegedly raped repeatedly by two members of that school's football team. (76) The victim filed a complaint with the university and, after a hearing, the school suspended Morrison for two semesters for violating the school's sexual assault policy. (77) But the suspension was lifted after an administrative appeal, largely because the sexual assault policy had not been widely circulated to the student body. (78) The victim then filed suit, alleging that the football players violated VAWA. (79) The defendants argued that VAWA exceeded Congress's Commerce Clause authority, and the district court agreed. (80) A divided panel of the Fourth Circuit reversed, but the full Fourth Circuit, sitting en banc, vacated and affirmed the district court's opinion. (81)

A divided Supreme Court affirmed the opinion in United States v. Morrison (Morrison), again splitting five to four. Chief Justice Rehnquist again wrote the Court's majority opinion for Justices O'Connor, Scalia, Kennedy, and Thomas, the same five-member majority that decided Lopez. The Chief Justice began by drawing upon Justice Kennedy's concurrence in Lopez to acknowledge that "[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." (82) But this presumption of constitutionality did not, as the Lopez opinion made clear, mean that the commerce power had no judicially enforceable outer limits; otherwise, it could be used to "obliterate the distinction between what is national and what is local and create a completely centralized government." (83)

Focusing again on the "substantial effects" category of Commerce Clause jurisprudence, the Morrison majority found that VAWA suffered from defects similar to the GFSZA. Chief Justice Rehnquist observed that "a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case." (84) He emphasized that "[g]endered-motivated crimes of violence are not, in any sense of the phrase, economic activity." (85) This emphasis on the regulated activity would have an influence on the subsequent ESA cases. (86)

Although the Court refused to adopt "a categorical rule against aggregating the effects of any noneconomic activity," Chief Justice Rehnquist claimed that "thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature." (87) Thus, the government could not defend VAWA by aggregating the effects of all gender-motivated violence to produce a substantial effect on interstate commerce. (88) According to the Chief Justice, if the government could aggregate in this context, it would assume a general police power police reserved to the states by the Constitution. (89) This apparent restriction on aggregating effects constitutes the greatest threat to the constitutionality of the ESA's take provision.

C. Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers: Commerce Clause Restrictions as Statutory Interpretation

The Clean Water Act (90) requires a permit for filling "navigable waters," which the statute defines as "waters of the United States." (91) The jurisdictional scope of waters of the United States has always been controversial, (92) even though the statute's legislative history clearly indicates that Congress intended to assert jurisdiction over all waterbodies to the limits of the Commerce Clause. (93) The longstanding regulatory definitions promulgated by the statute's implementing agencies, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps), asserted jurisdiction over intrastate waters "the use, degradation, or destruction of which could affect interstate or foreign commerce." (94) In addition, under what became known as the migratory bird rule, the Corps claimed regulatory authority over intrastate waters "[w]hich are or would be used as habitat by birds protected by Migratory Bird Treaties, by other migratory birds which cross state lines, [or] by endangered species." (95) The Corps applied the migratory bird rule in determining that the Solid Waste Agency of Northern Cook County, Illinois (SWANCC) needed a permit to fill ponds with solid waste on an abandoned sand and gravel pit; the agency then refused to issue the permit. (96) SWANCC filed suit, claiming that the Corps lacked jurisdiction over the ponds. The district court agreed, but the Seventh Circuit reversed in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC). (97) The Supreme Court, in yet another five to four decision authored by Chief Justice Rehnquist, reversed the Seventh Circuit.

Chief Justice Rehnquist rested his opinion on statutory grounds, ruling that the term "navigable waters" in the Clean Water Act required that intrastate, nonnavigable waters like the ponds at issue in SWANCC must have a significant nexus to waters that are in fact navigable. (98) Thus, the jurisdictional reach of the statute did not extend to those so-called "isolated waters" covered by the migratory bird rule. (99) If it did, the Chief Justice suggested that it would raise "significant constitutional questions," requiring the identification of the "precise object or activity" which in the aggregate substantially affects interstate commerce. (100) Yet unlike gun possession in Lopez or gender-motivated violence in Morrison, there was little question that the regulated activity--the creation of a municipal landfill--was a commercial activity. (101) Although Chief Justice Rehnquist recognized that the proposed municipal landfill was "'plainly of a commercial nature,'" (102) he opined that Clean Water Act jurisdiction over isolated waters could impinge on the "[s]tates' traditional ... power over land and water use." (103) This suggestion that land- and water-use regulation could be an area of traditional state concern was among the more ominous inferences in the SWANCC decision. (104)

Another troublesome aspect of the SWANCC decision was the Court's unwillingness to accept the government's argument that the requisite link to commerce was satisfied by the proposed municipal landfill, despite the Court's acknowledgment that the landfill was "'plainly of a commercial nature'," and the Court's instruction that the judicial inquiry should be to "the precise object or activity that, in the aggregate, substantially affects interstate commerce." (105) Part of the problem may have been that the government's primary argument in the lower courts was that the requisite commerce was supplied not by the nature of the regulated activity, but by the fact that migratory birds used ponds at the landfill site. (106) Perhaps Justice Rehnquist was simply reacting adversely to the change in litigation tactics. But it is also possible he was suggesting that the commercial nature of the landfill was too attenuated to provide the commerce necessary to support Clean Water Act jurisdiction. (107) This might mean that the requisite commercial connection for the ESA take provision is the listed species' substantial effect on commerce, not the regulated activity's commercial nature.

III. THE CONSTITUTIONALITY OF THE ESA's TAKE PROVISION

The ESA's take provision has been controversial since its enactment, since the ESA's definition of "take" expanded the definition contained in earlier wildlife statutes like the Migratory Bird Treaty Act. (108) By adding the term "harm" to the list of proscribed actions, (109) the statute authorized the Department of the Interior to promulgate regulations defining habitat modification or degradation as "take." (110) This regulation was upheld by the Supreme Court in a six to three decision in 1995. (111) As a result, the focus of challenges to ESA implementation shifted from whether habitat protection was authorized by the statute to whether such protection exceeded Congress's Commerce Clause authority.

The Supreme Court's determination to impose limits on federal Commerce Clause regulation quickly raised questions about the constitutionality of the ESA. Many, perhaps most, listed species have no commercial, recreational, or medicinal value and exist only in one state. Under the Court's new version of "Out Federalism," if these species lacked a substantial effect on interstate commerce, their regulation under the ESA would be beyond Commerce Clause authority.

Although all the courts in the cases considered below concluded that the listed species had a sufficient effect on interstate commerce to satisfy Commerce Clause scrutiny, there was no agreement as to why. Some judges found the requisite effect in the relationship of the listed species to interstate commerce; some found it in a generic interrelationship between all listed species and interstate commerce; some found it in the relationship of the regulated activity to interstate commerce; some found more than one reason to uphold the ESA's take provision. The key issues concerned whether the effects of the species could be aggregated, so that the cumulative effects of their loss could be added to produce a substantial effect on interstate commerce, and the nature of the appropriate class of activities for aggregation.

A. The Delhi Sands Flower-Loving Fly and the Biodiversity Defense

The first appellate case to consider the constitutionality of the ESA's take provision involved the Delhi Sands flower-loving fly (Raphiomidas terminatus abdominalis), an intrastate species known to exist only within an eight-mile radius in San Bernardino and Riverside Counties, California, and one of only a few species that pollinate native plant species of the region. (112) The fly is not bought or sold in interstate commerce; tourists do not seek it out; it has no current medical value; it is a quintessential noncommercial species. However, as a pollinator, the fly is part of a class of species that provides essential agricultural services: The value of all insect-pollinated plants in the United States was estimated at more than $19 billion in the late 1980s. (113) After the fly lost over 97% of its historic habitat due to urban development, unauthorized trash dumping, and off-road vehicle use, and after receiving two citizen petitions, (114) the Secretary of Interior listed the species as endangered in 1993. (115) It was the first time a species of fly was listed under the ESA. (116)

The listing disrupted the plans of San Bernardino County to build a hospital, since the proposed hospital site included fly habitat. As a result, the county modified its plans to eliminate effects on fly habitat (and also eliminate the need for an ESA permit), creating an eight-acre preserve of fly habitat and a 100-foot corridor allowing interbreeding between two fly populations. (117) Subsequently, the county obtained an ESA permit to construct a power plant for the hospital on four acres of fly habitat by acquiring and preserving an additional 7.5 acres of habitat. (118) However, when the county sought to redesign an intersection to improve emergency vehicle access to the hospital, the Interior Department notified the county that it would need another ESA permit. Rather than seek another permit, the county, joined by two building groups and two nearby cities, filed suit, claiming that the ESA's take prohibition, as applied to the fly, was unconstitutional. (119) The district court rejected the challenge, concluding that the federal government had the constitutional authority to regulate wildlife and nonfederal lands that supply habitat for endangered species.(120) A fractured D.C. Circuit affirmed, Judge Wald writing an opinion in which Judge Henderson joined in part, while Judge Sentelle dissented. (121)

Judge Wald thought the take provision was constitutional on two different grounds: 1) it was proper congressional control over the channels of interstate commerce, both because it regulated the interstate transport of listed species and because it kept the interstate channels free from immoral and injurious uses; (122) and 2) it substantially affected interstate commerce by preventing injurious destructive interstate competition (123) and protecting biodiversity. (124) She observed that there was little question that Congress, in enacting the ESA, was quite concerned with preserving the commercial value of species diversity. (125) Judge Henderson joined in the biodiversity rationale, but neither Judge Henderson nor any other judge considering the ESA's constitutionality agreed with Judge Wald that the ESA was justified as a proper regulation of the channels of interstate commerce. (126)

Judge Wald and Judge Henderson agreed that the take regulation substantially affected interstate commerce by protecting biodiversity, although they did not agree as to why. Assuming the applicability of aggregation, Judge Wald made no attempt to ascertain the fly's effect on interstate commerce and focused instead on the effect of all listed species on interstate commerce. She noted that endangered plants and animals are and could be valuable sources of medicine and genetic material, the loss of which could have substantial commercial consequences. (127) While she acknowledged that it is impossible to know precisely what effect the loss of a particular species might have on interstate commerce, she maintained that "the extinction of species and the attendant decline in biodiversity will have a real and predictable effect on interstate commerce." (128) Judge Wald also observed that the Ninth Circuit upheld the Bald Eagle Protection Act (129) as a valid exercise of Commerce Clause authority on similar grounds: since "[e]xtinction of the eagle would substantially affect interstate commerce by foreclosing any possibility of several types of commercial activity." (130)

Although Judge Henderson concurred with Judge Wald that the loss of biodiversity has a substantial effect on ecosystems, she did not agree that potential future medicinal or economic effects of biodiversity loss justified Commerce Clause regulation, finding these potential effects to be too uncertain. (131) Nevertheless, she agreed that the loss of biodiversity due to the taking of listed species had a substantial effect on interstate commerce because, due to the interconnectedness of species and ecosystems, "it is reasonable to conclude that the extinction of one species affects others and their ecosystems and that the protection of a purely intrastate species (like the Delhi Sands Flower-Loving Fly) will therefore substantially affect land and objects that are involved in interstate commerce." (132) The interconnectedness that Judge Henderson found persuasive holds that the whole is greater than the sum of its parts; that it is the number of species, not their individual characteristics, that is valuable. Biodiversity requires large numbers of species, and large numbers will improve the chances that a particular species will provide great human benefits, like medicinal cures or nutritional advances. (133) This judicial concern for protecting biodiversity has solid grounding in science, (134) and the willingness to defer to reasonable congressional determinations (135) reflects judicial restraint.

In addition to embracing the biodiversity defense, Judge Henderson also concluded that the nature of the particular take that the county proposed--commercial land development with "a plain and substantial effect on interstate commerce"--made the application of the take regulation to the rerouted intersection a lawful exercise of Commerce Clause authority. (136) This focus on the commercial nature of the regulated activity was materially different from the focus on the effects of the loss of the fly on interstate commerce, raising questions about where the proper focus for Commerce Clause analysis should be. (137) Since Judge Henderson's alternative ruling on the commercial nature of the hospital road was not joined by Judge Wald, the majority decision was based on the biodiversity defense. But an ensuing panel of the D.C. Circuit would find the focus on the commercial nature of proposed land development to be persuasive. (138)

Judge Sentelle dissented, concluding that the take prohibition was unconstitutional because the fly was neither "interstate nor commerce" nor within the Lopez decision's taxonomy. (139) Judge Sentelle objected to the majority's biodiversity rationale for failing all of the Lopez tests: The regulated activity was not commercial; the statute contained no jurisdictional limit; and the reasoning had no logical stopping point. (140) He emphasized that the Framers authorized Congress to regulate commerce, not ecosystems, and "[a]n ecosystem is an ecosystem, and commerce is commerce." (141)

Judge Sentelle also rejected Judge Henderson's alternative rationale that emphasized the commercial nature of the hospital and road. (142) He thought that this focus on the regulated activity was inconsistent with Lopez because it lacked a stopping point and would allow the regulation of noncommercial activities where the regulation substantially affects interstate commerce. (143) Instead of focusing on the regulated activity, he insisted that the proper focus was on whether the fly had substantial effects on interstate commerce, and he concluded it had none. (144)

B. The Commercial Effects of Red Wolves and the Importance of a Comprehensive Scheme

The second appellate decision to consider the constitutionality of the ESA's take provision involved a species with much closer connections to commerce than the flower-loving fly: the red wolf (Canis rufus). Red wolves were once common throughout the southeastern United States, especially in riverine habitats where they preyed on marsh rabbits (Sylvialagus palustris). (145) But due largely to the drainage of swamps and wetlands for agricultural production and the success of predator control efforts, the red wolf was listed as endangered in 1967. (146) Because of their perilously low numbers, the Fish and Wildlife Service (FWS) began trapping red wolves for a captive breeding program in the mid-1970s, with the idea that they would eventually be reintroduced into the wild. (147) In the late 1980s, the Service began reintroducing red wolves into Alligator National Wildlife Refuge in eastern North Carolina, and later expanded to the Pocosin Lakes National Wildlife Refuge in Tennessee in the early 1990s. (148) The red wolves would not stay on federal lands, however, and by 1998 over half of the population of approximately 75 wolves had migrated onto private lands. (149)

The wolves were not popular with local landowners, who saw them as threats to their livestock. But an FWS regulation prohibited the take of red wolves unless in defense of human life or when wolves are in the act of killing pets or livestock. (150) In 1990, a landowner shot a red wolf he thought was threatening his cattle. The federal government prosecuted the landowner, who pleaded guilty. The prosecution triggered local opposition to the red wolf program, and the North Carolina legislature responded by passing a statute allowing trapping and killing of red wolves by landowners in four eastern counties. (151) This state statute was in facial conflict with the ESA wolf regulation, although no actual conflicts ensued, since there were apparently no prosecutions after the enactment of the statute.

Nevertheless, a group of plaintiffs, including the landowner who had been prosecuted earlier, (152) filed suit against the red wolf take regulation, claiming that it exceeded the federal Commerce Clause power. The district court rejected the claim, determining that the regulation was permissible because red wolves "are things in interstate commerce," they move across state lines, are followed by tourists, academics, and scientists, and the tourism they produce substantially affects interstate commerce. (153) A divided Fourth Circuit affirmed in Gibbs v. Babbitt (Gibbs), a case significant for being the first appellate court decision on the constitutionality of the ESA's take provision in the wake of the Supreme Court's Morrison opinion.

Writing for the majority, Chief Judge Wilkinson acknowledged that Lopez and Morrison recognized that the Commerce Clause power has judicially enforceable limits, but he cautioned that courts "may not simply tear through the considered judgments of Congress" and may invalidate a federal statute "only upon a plain showing that Congress has exceeded its constitutional bounds." (154) Like the D.C. Circuit in the flower-loving fly case, he focused on the third prong of Commerce Clause analysis identified by the Lopez opinion--whether the regulated activity, alone or in the aggregate, substantially affects interstate commerce. (155)

Schooled by Chief Justice Rehnquist's opinion in Morrison, (156) Judge Wilkinson emphasized the importance of the commercial character of the regulated activity, but he also noted that "under the Commerce Clause, economic activity must be understood in broad terms." (157) With this principle in mind, he determined that a take of a red wolf on private land is economic activity because:

   The relationship between red wolf takings and interstate commerce is
   quite direct--with no red wolves, there will be no red wolf related
   tourism, no scientific research, and no commercial trade in
   pelts.... While a beleaguered species may not presently have the
   economic impact of a large commercial enterprise, its eradication
   nonetheless would have a substantial effect on interstate commerce.
   And through preservation the impact of an endangered species on
   commerce will only increase. (158)

The court also observed that landowners, who consider the red wolf a menace, take them in an effort to protect livestock of commercial value and claim that restrictions on such take adversely affect interstate commerce. Judge Wilkinson found this also to be a sufficient basis for Commerce Clause regulation, since Congress may choose to promote or to restrict commercial enterprises. (159)

Because the take of wolves was economic activity, the majority ruled that individual takings could be aggregated for Commerce Clause analysis, "especially ... where, as here, the regulation is but one part of the broader scheme of endangered species legislation." (160) Thus, the court considered the take regulation's connection to the estimated economic value of wolf recovery in terms of tourism, scientific research, and the possibility of a renewed trade in wolf pelts. (161) It also concluded that wolf preservation could produce economic benefits through wolf predation on agricultural pests by helping to create a healthier ecosystem. (162)

In addition to its conclusions about the commercial nature of wolf take, the Gibbs majority upheld the red wolf take regulation on the ground that it was "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." (163) Judge Wilkinson quoted the Supreme Court to the effect that, "'[a] complex regulatory program ... can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.'" (164) The red wolf regulation was sustainable because it was part of the ESA, a regulatory scheme with clear connections to commerce, (165) and could not be viewed only from the taking of one wolf "but from the potential commercial differential between an extinct and a recovered species." (166) Otherwise, the result could be that the fewer the members of a species, the less the federal authority to prevent its extinction, a result Judge Wilkinson termed "perverse" because it would "eviscerate the comprehensive federal scheme for conserving endangered species and turn congressional judgment on its head." (167) This comprehensive scheme rationale, which moves the focus away from the commercial nature of the species and the regulated activity and to the statutory scheme, would be adopted by the Fifth Circuit in the Texas cave species case. (168)

The majority acknowledged that Lopez and Morrison require "a distinction between what is truly national and what is truly local" but rejected the appellants' contention that the ESA wolf regulation infringed on traditional state control of wildlife. (169) The court observed that state wildlife authority has long been shared with the federal government and circumscribed by it. (170) Citing a lengthy history of federal wildlife regulation, the court concluded that "endangered wildlife regulation has not been an exclusive or primary state function." (171) Further, the Fourth Circuit ruled that ESA regulation was sustainable as a federal effort to prevent destructive interstate competition from producing a "race to the bottom" that would damage national environmental quality. (172) Thus, unlike the statutes at issue in Lopez and Morrison, the ESA regulation was within the traditional federal sphere: A ruling to the contrary would not "preserv[e] traditional state roles [but would instead] dismantl[e] historical federal ones." (173) Moreover, the ESA regulation had a natural stopping point--only regulation of listed species was authorized--so there was no danger of the ESA being used as a general police power. (174)

In response to Judge Luttig's dissent, the majority cautioned against judicial activism that "would rework the relationship between the judiciary and its coordinate branches." (175) The majority chided Judge Luttig's apparent disapproval of the substance of the red wolf regulation and accused him of seeking to reverse the traditional presumption in favor of an enactment's constitutionality, suggesting that he would impose a burden on those defending the constitutionality of legislation. (176) This result would, according to the Fourth Circuit, unwisely thrust courts "into the thick of political controversy." (177) The court rejected the dissent's contention that Lopez and Morrison called for transforming the traditional judicial protection of state activities "into a sword dismembering a long recognized federal [activity]." (178) Judge Wilkinson concluded, "It is as threatening to federalism for courts to erode the historic national role over scarce resource conservation as it is for Congress to usurp traditional state prerogatives in such areas as education and domestic relations." (179)

Judge Luttig's spirited dissent took issue with the majority's wolf-commerce conclusions, referring to the inferences and speculation necessary to reach them as "exponentially" (180) greater than what would be needed to find a commerce connection in Lopez and Morrison. (181) He thought that the killing of red wolves on private property did net constitute economic activity, and therefore could net be aggregated for the purpose of finding a substantial effect on commerce. (182) Judge Luttig accused the majority of adopting the approach of the dissents in Lopez and Morrison and unwisely deferring to the political branches to safeguard states against federal encroachment. (183)

C. The Texas Cave Species and the Comprehensive Scheme Principle (Again)

Whereas the red wolf case involved a species with evident effects on interstate commerce, six tiny subterranean invertebrate arachnids and insects, located only in caves in two Texas counties near Austin, had a much more tenuous link to commerce. Nevertheless, these rather anonymous species were listed under the ESA and combined to block a landowner's plans to develop a Wal-Mart shopping center, a residential subdivision, and office buildings. (184) When FWS denied the landowner an incidental take permit for the development, (185) the landowner sued, alleging that the ESA's take provision, as applied to the Texas cave species, was in excess of the Commerce Clause power. (186) The district court rejected this claim, ruling that the take provision was constitutional under the Commerce Clause because the proposed development had a substantial effect on interstate commerce, as the court was "hard-pressed to find a more direct link to commerce than a Wal-Mart." (187)

The Fifth Circuit reversed the lower court's reasoning but unanimously affirmed the result. After observing that one of the "first principles" of constitutional law is the notion that the federal government is one of limited powers, (188) Judge Barksdale noted that in Morrison--where the Supreme Court defined the outer limits of the Commerce Clause power--the Court identified several considerations for determining whether an intrastate activity had substantial effects on interstate commerce, primarily whether the regulated activity was economic or commercial in nature. (189) But, drawing support from both the D.C. Circuit in the fly case and Fourth Circuit in the red wolf case, the Fifth Circuit defined the regulated activity to be merely cave species take, not a commercial land development scheme. (190) In so doing, it rejected the district court's reliance on the interstate effects of the landowner's planned commercial development. (191) Judge Barksdale observed that although the effect of the ESA's cave species' regulation was to prohibit commercial development, the ESA was not directly regulating commercial development, only cave species take. Thus, the focus of the judicial inquiry was not on the general conduct or the motivation of the regulated party, but instead on the economic nature of the regulated activity--the take of cave species--either alone or in combination with other regulated takes. (192) The court bolstered this conclusion with language from the Supreme Court's SWANCC opinion, suggesting that relying on the commercial motivation of the regulated conduct would allow noncommercial actors to escape regulation. (193)

With the focus thus narrowed to the effect of cave species take, the Fifth Circuit proceeded to reject the government's argument that the Texas cave species themselves had a substantial effect on interstate commerce. The court determined that the scientific interest generated by the species and their possible future economic benefits was either negligible or too hypothetical to satisfy Morrison's requirement that there must be a close link between an intrastate activity and its effect on interstate commerce. (194) Consequently, the court concluded that take of Texas cave species, with no present or historic market (unlike red wolves) and only a possible future market, had only a de minimis effect on interstate commerce. (195) The court therefore refused the government's invitation to aggregate cave species take with all other endangered species take to produce an aggregate substantial effect on interstate commerce. (196)

Although it rejected aggregating acts with negligible interstate commerce effects to produce a cumulative substantial effect, the Fifth Circuit nevertheless upheld the application of the ESA's take provision to the cave species using the aggregation principle because it concluded that this noncommercial, intrastate activity was essential to the ESA's overall economic regulatory scheme. The court reasoned that the ESA's language, legislative history, and application indicated that the statute was intended, in the main, to regulate economic activity. (197) Moreover, as "truly national" legislation, the ESA did not conflict with areas of traditional state concern, since authority over land use and wildlife preservation was shared with the federal government. (198) Further, the cave species take regulation was "essential" to the ESA's economic regulatory scheme because disavowing it would "undercut" the ESA by allowing piecemeal extinctions, threaten the "interdependent web" of all species, and undermine the ESA's "essential purpose" of protecting ecosystems upon which both humans and other species depend. (199)

Thus, while rejecting the idea that the use of Commerce Clause power could be justified by the commercial aspirations of the regulated entity, the Fifth Circuit allowed aggregation of the effects of an intrastate activity with the negligible effects on interstate commerce where the regulation was an essential part of the ESA's regulatory scheme--which was designed to regulate mainly commercial activity. This reasoning, based on the rationality of regulating both commercial and noncommercial activities, would sustain all ESA take regulations under the Commerce Clause regardless of the conduct or motivation of the activity subject to the regulation. The Fifth Circuit thus echoed the concurrence in the flower-loving fly case concerning the interdependence of species, and vindicated the overriding ecosystem preservation purpose of the ESA. (200)

Judge Dennis wrote a concurrence which elaborated on the court's "comprehensive scheme" principle. He justified the ESA's regulation of both commercial and noncommercial species: Since their interrelationship is central to the survival of both, it was rational for Congress to regulate both. (201) Judge Dennis added that the Constitution's Necessary and Proper Clause justified the cave species' regulation in addition to the Commerce Clause. (202) He sustained the regulation under this rationale "because such regulation is essential to the efficacy of--that is, the regulation is necessary and proper to--the ESA's comprehensive scheme ... because the scheme has a very substantial impact on interstate commerce." (203) Thus, the commerce necessary to support the regulation came not from the motivation of the regulated party or from the character of the regulated activity, but from the comprehensive economic regulatory scheme of which the regulation was an essential part.

D. The Arroyo Southwestern Toad and Commercial Land Development

Another species with a tenuous link to interstate commerce is the arroyo southwestern toad (Bufo californicus), which lives in scattered populations along the West Coast from Baja California, Mexico to Monterey County, California. The toad breeds in shallow sand or gravel pools near streams but spends most of its life in upland habitats, even though toads venture no more than 1.2 miles from their natal streams. (204) Largely due to the loss of 76% of its California habitat as a result of land development, the Secretary of Interior listed the toad as endangered in 1994. (205)

In 2000, this listing came into conflict with a 280-home residential development proposed by Rancho Viejo along Keys Creek in San Diego County. The developer proposed to use parts of the Keys Creek streambed, which supplies toad habitat, for a "borrow area" to provide fill for home construction on 52 upland acres. (206) Because the development involved a discharge of fill into waters of the United States, it required a section 404 permit under the Clean Water Act, which in turn triggered biological consultation under the ESA. (207) While consultation was underway, the developer dug a trench and erected a fence along Keys Creek, which impeded toad migration between the stream and the uplands, and which the FWS determined, in May 2000, constituted an unauthorized take of the toads. (208) Three months later, in August 2000, the Service issued a biological opinion which concluded that the planned excavation would result in the taking of toads and would also jeopardize the continued existence of the species. Consequently, the Service proposed an alternative that would use fill dirt from off-site sources, thus allowing the development to proceed without jeopardizing the toad. (209) The developer decided hot to remove the fence or adopt the agency's alternative; instead, it filed suit in federal district court in the District of Columbia, alleging that application of the ESA to its development was unconstitutional under the Commerce Clause. (210) The district court rejected the developer's claim based on the D.C. Circuit's flower-loving fly decision four years earlier. (211)

The D.C. Circuit unanimously affirmed, on the basis of one of the grounds in the divided ruling of the fly case. (212) Judge Garland interpreted the earlier decision as upholding the constitutionality of ESA's take provision as applied to the intrastate fly because the regulated activity substantially affected commerce for two reasons: 1) the loss of biodiversity caused by the take would have a substantial effect on ecosystems and therefore on interstate commerce; and 2) the take provision regulated a commercial development that clearly had interstate effects. (213) The court concluded that the second rationale governed the toad case. (214)

Like the hospital and the intersection in the fly case, (215) the 200-acre development--the activity regulated by the ESA take provision--was, according to the D.C. Circuit, "plainly an economic enterprise." (216) Thus, the effect of the development could be considered with other similar developments in the aggregate, and from that perspective the court had "no doubt" there was a rational basis for the government's contention that the residential housing development had a substantial effect on interstate commerce. (217)

Perhaps the developer's strongest argument (the court labeled it the "principal argument") was that Morrison "came pretty close" to adopting a categorical rule against regulating noneconomic activity regardless of its effect on interstate commerce. (218) Since the toad was "not itself 'the subject of commercial activity,'" the developer maintained that the effects of its take could not be aggregated to produce a substantial effect on interstate commerce. (219) Unlike the Fifth Circuit in the cave species case, (220) the D.C. Circuit rejected this line of reasoning, concluding that since "the ESA regulates takings, not toads," the "regulated activity [was therefore] the planned commercial development, hot "the arroyo toad that it threatens." (221) The court emphasized that penalties and prohibitions of section 9 of the ESA apply to "the persons who do the taking, not to the species that are taken." (222)

Reinforcing the same point, Judge Garland quoted from Morrison to assert that "'the proper inquiry' is whether the challenge is to 'a regulation of activity that substantially affects interstate commerce.'" (223) Moreover, according to the court, regulating a housing development was clearly regulating commercial activity, which was materially different from regulating gender-motivated violence in Morrison or gun possession in Lopez, where "neither the actors nor their conduct had a commercial character, and neither the purposes nor the design of the statute had an evident commercial nexus." (224) Judge Garland quoted from the ESA's findings to show that its purpose was to regulate "economic growth and development untempered by adequate concern and conservation" which produced species extinctions. (225)

The court also rejected the developer's allegations that the ESA had an unconstitutional noneconomic purpose of preserving biodiversity, and that the regulation at issue impermissibly preserved toads with no economic value. First, the court reaffirmed Judge Wald's sentiments in the flower-loving fly case to the effect that "there is no question that the commercial value of preserving species diversity played an important role in Congress' deliberations." (226) Second, the court noted that, like many statutes, the ESA had multiple purposes, which included economic concerns, and judicial attempts to discern a "true or primary legislative purpose" were an unwise recipe for judicial intervention into the political process. (227) Third, Judge Garland observed that both Morrison and Lopez affirmed the "long held" and continuously exercised capability of Congress to employ the Commerce Clause to achieve noneconomic ends. (228) For example, the Homeland Security Act of 2002, (229) prohibiting the use or possession of explosives, weapons of mass destruction, and firearms by convicted felons, was not enacted, the court stated, "merely (or even primarily) to protect commercial property." (230)

Finally, the D.C. Circuit rejected the developer's claim that the ESA amounted to an unlawful intrusion on land-use decisions, an alleged area of traditional state regulation, because the court ruled that the ESA is not a general land-use statute. (231) Instead, the court stated that "the ESA represents a national response to a specific problem of 'truly national' concern." (232) Relying heavily on Chief Judge Wilkinson's opinion in the red wolf case, the D.C. Circuit agreed that the regulation of wildlife and natural resources is a power shared between the federal government and the states, and therefore the ESA did not "'trench impermissibly upon state powers.'" (233) Also, Judge Garland agreed with the Fourth Circuit that federal regulation of endangered species and their habitat was necessary to "arrest the 'race to the bottom'" that would occur from interstate economic competition "'whose overall effect would damage the quality of the national environment.'" (234)

Judge Garland concluded with a call for judicial restraint by quoting Morrison: "'Due respect for the decision of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.'" (235) Since the developer in Rancho Viejo made no such "plain showing," the court upheld the application of the arroyo southwestern toad regulation to the proposed housing development as indistinguishable from the challenge to the hospital development that the D.C. Circuit rejected earlier in the flower-loving fly decision. (236)

Chief Judge Ginsberg wrote a brief concurrence which emphasized that, under Lopez, there must be a "logical stopping point to [the Court's] rationale" for upholding congressional exercise of Commerce Clause power. (237) He found this stopping point in the toad case in the fact that the regulated "large-scale residential development" substantially affected interstate commerce. (238) But, he cautioned, a "lone biker in the woods" or a "homeowner who moves dirt in order to landscape his property" does not affect interstate commerce by executing an action that produces a take of the listed toad. (239) He was convinced that "[w]ithout this limitation, the Government could regulate as a take any kind of activity regardless whether that activity had any connection with interstate commerce." (240) The majority did not share Chief Judge Ginsberg's sentiment that the ESA could not reach an individual hiker or hunter. (241)

IV. WOULD THE SUPREME COURT UPHOLD THE TAKE REGULATION?

The four decisions discussed above are notable for their fractured reasoning, so even though there is no split among the circuits in terms of results, there is hardly agreement on the reasons why the take provision of the ESA is constitutional. In addition, two of the decisions prompted dissents from well-known members of the Federalist Society, Judges Luttig and Sentelle, (242) so it is possible that the Supreme Court might decide to take up the issue, even without a circuit split. (243)

The key question in the cases concerns the circumstances under which aggregation of effects is permissible since, if it is, the links between listed species and interstate commerce can be readily demonstrated. In Morrison, the Court refused to rule out aggregating noncommercial species, but Chief Justice Rehnquist rationalized all past cases in which the Court allowed aggregation as involving "some sort of economic endeavor." (244) Related to that question are questions about the proper scope of aggregation, whether potential but unknown effects may be used to produce substantial effects on commerce, and whether these effects are so attenuated that they would countenance virtually all assertions of federal power. (245) We focus on the critical commercial character question first.

A. The Commercial Nexus

The reasoning of courts of appeal on the economic nature of the activity breaks down into three different categories: 1) decisions emphasizing the substantial commercial effects of the listed species, 2) decisions emphasizing the substantial commercial effects of the regulated activities taking the listed species, and 3) decisions emphasizing the comprehensiveness of the ESA's economic scheme. In the latter category, we include the biodiversity defense recognized by the D.C. Circuit in the fly case and the avoidance of destructive interstate competition discussed by Judge Wald in the D.C. Circuit, the Fourth Circuit, and the full panel of the D.C. Circuit In the toad case, because they help to explain the commercial functions served by the ESA's comprehensive scheme.

1. The Commercial Effects of Listed Species

We think the easiest case for the Supreme Court to sustain the ESA's take provision is the red wolf case, because the Fourth Circuit determined that the species itself had substantial effects on interstate commerce. (246) Chief Judge Wilkinson concluded that the taking of red wolves on private land was an economic activity for a variety of reasons: 1) farmers took wolves for economic reasons, such as to protect livestock; (247) 2) conversely, wolf taking could substantially harm commerce by removing an important predator of animals that eat farmers' crops; (248) and 3) the loss of red wolves would, in the aggregate, have "quite direct" effects on interstate commerce by damaging tourism, inhibiting scientific research, and thwarting a possible renewed trade in wolf pelts. (249) The court cited studies indicating that red wolf recovery could produce perhaps hundreds of millions of dollars in tourism annually. (250) In light of these assertions, we think a majority of the Supreme Court would have little difficulty in affirming the Fourth Circuit. But the trouble with this line of reasoning is that it would uphold the constitutionality of the ESA's take provision only with respect to megafauna, which do not constitute the majority of listed species. For those species which are little known and which generate no interstate travel for science or recreation--like the flower-loving fly, the cave species, or the arroyo toad--this defense of the ESA take provision is less than hall a loaf.

2. The Commercial Nature of Regulated Take

An alternative defense, which we think the Court would also embrace, concerns the interstate commercial effects of the activity subject to ESA regulation. This rationale engendered the most disagreement among the circuit courts. The D.C. Circuit in the arroyo toad case was the most notable adherent to this view, upholding the constitutionality of the application of the take provision by focusing on the commercial nature of the residential development that was proposed. (251) Both Chief Judge Wilkinson for the Fourth Circuit in the red wolf case and Judge Henderson concurring in the flower-loving fly case approved reliance on the commercial nature of the regulated activity as supplementary to their primary reasoning. (252) Relying on the economic activity being regulated draws support from both the language of the statute (253) and the language of the Supreme Court. (254)

On the other hand, the Fifth Circuit in the cave species case overruled a district court decision because it relied on the planned commercial development of the site, ruling that the lower court wrongly defined the scope of the regulated activity. (255) The Fifth Circuit stated that it was improper to consider the commercial motivations of the regulated conduct which, among other things, would allow regulation of commercially motivated take but would make regulation of noncommercial take unconstitutional. (256) The court felt that such a result would be inconsistent with the successful facial challenges in Lopez and Morrison. (257)

The split between the D.C. Circuit and the Fifth Circuit on this issue illustrates the unsettled state of the law. The Fifth Circuit's unwillingness to consider the commercial nature of the regulated activity seems to countenance a judicial disaggregation of the act of taking from the purpose of the take. For example, according to Judge Sentelle, the dissenter in the D.C. Circuit's flower-loving fly case, the activity being regulated was "killing files[,] ... controlling weeds[, and] ... digging holes," not constructing an intersection to facilitate traffic flow to the hospital. (258) This parsing allowed him to assert that the take was neither "inherently nor fundamentally commercial in any sense." (259) Distinguishing the actual act of taking from the purpose of the take in this manner seems like an invitation to engage in legal legerdemain permitting judges to declare unconstitutional regulations they personally oppose. This invitation to government by the judiciary led to unhappy results a century ago in what has become known as the Lochner Era. (260) As Chief Judge Wilkinson in the red wolf case warned, "a judge's view of the wisdom of enacted polices affords no warrant for declaring them unconstitutional." (261)

But the D.C. Circuit's position, focusing on the commercial nature of the regulated activity, is also troublesome. As Chief Judge Ginsberg's concurrence in the arroyo toad case made clear, this approach means that while the ESA could regulate a 200-acre residential development, regulation of a "lone hiker in the woods, or the homeowner who moves dirt in order to landscape his property" would be unconstitutional. (262) Although Judge Ginsberg did not mention them, a far greater threat to listed species may come from off-road vehicle enthusiasts. While it might make sense for a regulatory scheme to exempt small takes, that seems like a political or administrative decision. Why the Constitution should demand such exemptions is hardly clear.

3. The Commercial Nature of the ESA's Comprehensive Scheme

A third rationale for sustaining the ESA's take provision on the grounds of the commercial effects of the species was provided by both the Fourth Circuit in the red wolf case and the Fifth Circuit in the cave species case, where those courts ruled that the take provision was constitutional because the take provision was an essential part of the ESA's economic regulatory structure. (263) This reasoning is attractive from an environmental perspective because it avoids questions over whether the listed species has commercial effects, or whether the regulated activity is commercial in nature. (264) Instead, its focus is on the nature of the statute whether, for example, the ESA is designed to regulate commercial activity, and whether the take regulation is an essential part of the regulatory scheme. (265) The Fourth, Fifth, and D.C. Circuits all have ruled that the ESA was at least in part an economic regulatory scheme. (266) And the Fifth Circuit's conclusion in the cave species case that the take provision was central to the ESA finds support in the express congressional concern over the "critical nature of the interrelationships of plants and animals between themselves and with their environment" and in the legislative history's proclamation that the ESA's "essential purpose" is "to protect the ecosystems upon which we and other species depend." (267)

Perhaps more importantly, the "essential part of a comprehensive economic regulatory scheme" defense has grounding in the Supreme Court's recent federalism cases. In Lopez, for example, the Court struck down the GFSZA in part because it was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." (268) The Lopez opinion did not make clear whether the regulated activity must be commercial in order to aggregate its effects. But over two decades ago, in upholding the constitutionality of the Surface Mining Control and Reclamation Act, the Court noted that "a complex regulatory program ... can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test." (269) The Fifth Circuit in the cave species case interpreted Lopez to authorize regulation of noncommercial, intrastate species if: 1) the statute was directed at activity that is economic in nature; and 2) the regulated noncommercial activity is an essential part of the overall economic regulatory scheme. (270)

Moreover, Justice Kennedy's concurrence in Lopez observed that so long as a regulation is a part of a statute that is economic in "purpose[] and design," the regulation is constitutional, (271) thus suggesting that the requisite commercial link for Commerce Clause purposes could be found in the statutory structure as well as in the commercial nature of the listed species or the regulated activities. (272) Justice Kennedy noted that "Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy." (273) He also emphasized that the constitutional framework has been flexible enough, over the course of two centuries, to accommodate enormous changes in the power of the federal government. (274) It seems quite possible that Justice Kennedy might see that flexibility as sufficient to accommodate the ESA take provision, particularly in light of the fact that wildlife regulation is not a traditional traction to which the states "lay claim by right of history and expertise" (275) because the Court recently ruled that wildlife regulation is a power that states share with the federal government. (276) Thus, we think it is unlikely that Justice Kennedy would see wildlife regulation in the same light that he viewed education in the Lopez case. (277)

Also worth noting is Justice Kennedy's statement that where a statute's "purpose and design" has no "commercial nexus," and where "neither the actors nor their conduct has a commercial character," the proper judicial inquiry becomes whether "the exercise of national power seeks to intrude upon an area of traditional concern of the state." (278) Under this reasoning, whether a federal statute intrudes on an area of traditional state concern becomes a relevant consideration only where a statute attempts to regulate noncommercial activity. The inference of course is that not all federal regulation of noncommercial activity is proscribed. Justice Kennedy agreed that the GFSZA in Lopez exceeded the federal commerce power because it regulated non-commercial conduct and it intruded on a traditional area of state concern. (279)

Both the Fourth Circuit in the red wolf case and the D.C. Circuit in the arroyo toad case expressly rejected the notion that the ESA's regulation of wildlife intruded on a traditional area of exclusive state concern. (280) Since the Court recently ruled that wildlife and land-use regulation are powers shared between the federal and state governments, (281) it would seem unlikely that the Supreme Court would disturb these conclusions. Thus, it may be that under Justice Kennedy's two-part test, the ESA's take provision would withstand constitutional scrutiny even if the Court concluded it regulated noncommercial activity. (282)

Another defense of the ESA take provision based on the commercial effects of the species was supplied by the majority in the flower-loving fly case, where the D.C. Circuit ruled that the loss of the listed species would adversely affect biodiversity, and this loss would substantially affect interstate commerce. (283) Judges Wald and Henderson agreed that the regulation of take of listed species is justified by the Commerce Clause, since take affects the biodiversity of supporting ecosystems, the loss of which would substantially affect interstate commerce. (284) This rationale has the advantage of conforming the law to ecological reality, (285) which is of considerable concern to those worried about the constitutive aspects of environmental law. (286) We think, however, that the biodiversity defense is best combined with, and made part of, the comprehensive scheme rationale because an express purpose of the ESA--the comprehensive scheme--is the protection of ecosystems. (287) We also think that the comprehensive scheme rationale would be bolstered by arguing that without an ESA that comprehensively protects all listed species, the result would be a predictable destructive interstate "race to the bottom," with states competing for economic development that undermines species protection and biodiversity. This rationale was endorsed by the Supreme Court in Virginia Surface Mining and Reclamation Association v. Hodel (288) and by the Fourth and D.C. Circuits in the ESA cases. (289)

B. Statutory Links to Interstate Commerce

Interpreting Lopez, the Morrison Court listed two factors to consider regarding whether a Commerce Clause regulation substantially affects interstate commerce, in addition to the economic nature of the regulated activity. First, an express jurisdictional element in the statute explicitly limiting the regulation to effects on interstate commerce can support a judicial conclusion that an interstate activity has a substantial effect on interstate commerce. (290) Second, congressional findings or legislative history can help courts discern substantial effects in interstate commerce, even when not "visible to the naked eye." (291) Neither the GFSZA in Lopez nor VAWA in Morrison contained a statutory jurisdictional element, although VAWA did contain numerous congressional findings concerning the serious adverse effects of gender-motivated violence on interstate commerce. (292) However, the Morrison Court rejected VAWA's congressional findings, determining that accepting them would allow Congress "to completely obliterate the Constitution's distinction between national and local authority." (293) Chief Justice Rehnquist thought that VAWA's findings--which maintained that gender-motivated violence substantially affected interstate commerce by deterring potential victims from traveling interstate, from working in interstate businesses, and from engaging in interstate business transactions--were too attenuated to preserve any limits on Congress's commerce power. (294) Thus, the presence or lack of legislative findings seems less significant than the attenuation principle, discussed below.

In the case of the ESA, the statute expressly links species loss to unwise economic growth and development. (295) It also mentions the "esthetic, ecological, educational, historical, recreational, and scientific value" of healthy species to the nation, which would include economic value. (296) In addition, the ESA's legislative history includes findings about the importance of biodiversity to commerce, particularly potential medicinal effects. (297) These findings may be enough to convince a majority of the Court of the rationality of Congress's determination that failure to preserve listed species would, in the aggregate, substantially harm interstate commerce. However, since there is nothing in the statute ensuring that each listed species has substantial commercial effects, (298) we think it would be wise for the listing agencies to include in their listing decisions a discussion of the substantial actual and potential effects of that species on interstate commerce. Even if they do, that reasoning will be subject to judicial scrutiny under the attenuation principle. (299)

C. The Proper Scope of Aggregation and the Attenuation Principle

In both Lopez and Morrison, the Court concluded that the government's claims about the links of gun possession within school zones and gender-motivated violence to commerce were too attenuated. (300) The Court refused to follow the government's proffered reasoning in Lopez: Gun possession in school zones leads to violence; violence increases insurance rates, inhibits interstate travel, and retards the educational process, all adversely affecting national productivity and interstate commerce. (301) Similarly, the Court thought that Congress's claim that gender-motivated violence deterred interstate travel, employment, and business suffered from the same deficiency: The "but-for" causal chain employed could authorize federal regulation of "any crime, as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption." (302) The trouble with each statute the lack of a stopping point short of complete federalization--might also characterize the ESA.

The attenuation principle affects the proper scope of aggregation. The key question is whether, assuming that aggregation is permissible, the effects of a species take can be aggregated to include the loss of all members of that species, or indeed members of all listed species? Or are those one or two bridges too far? If they are not, a substantial effect on interstate commerce is much more likely to be demonstrated. The Supreme Court has yet to pronounce the proper scope of aggregation, except for Chief Justice Rehnquist's suggestion in Morrison that the aggregation in Wickard v. Filburn (303)--where the Court aggregated a farmer's on-farm consumption of wheat to all on-farm consumption by similarly situated farmers (304)--was "perhaps the most far reaching example" available. (305) The circuit courts considering the aggregation issue in the context of the ESA have generally upheld aggregation, (306) but they have varied both in terms of the scope of the permissible aggregation and the rationale for employing it.

The Fourth Circuit in the red wolf case concluded that because the take of wolves involved economic activity, the loss of that species could be aggregated to produce a substantial effect on interstate commerce, including effects on future commerce. (307) This is the easiest case to make concerning the proper scope of aggregation: It is rational to conclude that the unregulated loss of members of a species could lead to extinction of that species, since that result has occurred many times in the past. If the loss of that species itself would have substantial effects on present or future commercial activity, that would not seem to offend the Court's attenuation principle, especially in the case of species like red wolves which have been in interstate commerce in the past, and which arguably have substantial effects on commerce today. (308) This interpretation of the attenuation principle, however, would not benefit species without those commerce links, which probably includes most listed species.

A more challenging aggregation situation was the cave species case, where the Fifth Circuit concluded that the government's argument concerning the potential medicinal benefits of these noneconomic species was too speculative a basis upon which to ground aggregation. (309) In other words, these uncertain medicinal benefits were too attenuated to produce a substantial effect on commerce. (310) Therefore, the court refused to allow the government to aggregate the effects of a loss of the cave species with all other listed species. (311) Nevertheless, the Fifth Circuit did approve aggregating the effects of all listed species on the ground that regulation of the cave species was an essential part of the ESA's regulation of economic activity. (312)

The Fourth Circuit in the wolf case also approved this rationale, under which aggregation of all listed species is permissible as a vital component to a comprehensive economic regulatory scheme. (313) Both courts relied on the Lopez opinion, where the Supreme Court stated that "where a general regulatory scheme bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." (314) This reasoning allows regulation of non-commercial activities to be aggregated with regulation of commercial activities to produce substantial commercial effects due to the commercial nature of the regulatory scheme. This kind of aggregation would ratify regulation of all listed species, not merely species with clear commercial links like the red wolf. Whether it would offend the Court's attenuation principle, forbidding aggregations that would sanction unlimited federal regulation, (315) is less clear. However, we think that given the Court's endorsement of the comprehensive scheme rationale in Lopez, (316) the fact that endangered species regulation is not an area of traditional state concern, (317) and Justice Kennedy's approval of statutes whose "purpose[] ... [and] design ... [have] ... evident commercial nexus," (318) aggregation based on the commercial nature of the ESA's regulatory scheme is not likely to be too attenuated for a majority of the Court.

V. CONCLUSION

We believe that, as currently constituted, the Supreme Court would likely uphold the constitutionality of the ESA's take provision, although the issue is certainly not free from doubt. The dissenters in the circuit court decisions, Judges Sentelle and Luttig--well-known members of the Federalist Society (319)--denied that the listed flower-loving fly and red wolf had any economic effects at all. (320) Therefore, they would allow no aggregation of effects, and they refused to consider the economic nature of the regulated activities. It is possible that some members of the Supreme Court--perhaps Justices Scalia and Thomas (321)--would adopt the perspective of Judges Sentelle and Luttig, but we do not believe that a majority of the Court would.

Chief Justice Rehnquist's statements in SWANCC concerning the importance of identifying the "precise object or activity" having commercial effects seem to indicate that he would favor the approach of the D.C. Circuit in the arroyo toad case, where that court concentrated on the commercial nature of the regulated activity, a planned large-scale residential development. (322) Yet the Chief Justice's Lopez opinion sanctioned regulation that 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." (323) Coupled with Justice Kennedy's approval of statutes whose "purposes" and "design" have a commercial nexus, (324) we believe a majority of the Court would be willing to sustain the ESA take provision as an essential part of the ESA's comprehensive economic regulatory scheme. Affirming the ESA take provision on this ground would be ecologically preferable to an affirmation on the grounds that either the listed species or the regulated activity would have substantial effects on interstate commerce. The former would largely be limited to megafauna, like red wolves, (325) while the latter would exempt small actors, the putative "hiker in the woods or the homeowner landscaping his property." (326)

Since the comprehensive scheme defense of the take provision is grounded in the purposes and design of the statute, it seems likely to appeal to Justice Kennedy. We think its prospects would be bolstered by linking the comprehensive scheme rationale to the maintenance of biodiversity--which, after all, is a purpose of the ESA (327)--and to the avoidance of the destructive economic "race to the bottom" endorsed by both the Supreme Court and several circuits. (328) We think the comprehensive scheme rationale could earn rive, or perhaps six, votes from the Court. Adoption of this rationale by the Court would avert the perverse result of endangered species--which by definition must be "in danger of extinction throughout all or a significant portion of its range" (329)--having so few members that they cannot demonstrate a substantial effect on interstate commerce. As Chief Judge Wilkinson explained for the Fourth Circuit, such a result would mean that "the more endangered the species, the less authority Congress has to regulate the taking of it ... because there are too few animals left to make a commercial difference. [This result] would eviscerate the comprehensive federal scheme for conserving endangered species and turn congressional judgment on its head." (330)

A less satisfactory ground for upholding the constitutionality of the ESA's take provision would be to focus on the commercial nature of the regulated activity, the approach of the D.C. Circuit in the arroyo toad case as well as Judge Henderson in the fly case. (331) Upholding the take provision on the basis of the commercial nature of the regulated activity would have sound constitutional footing, (332) but it would leave noncommercial activities free to harm listed species. (333) A still less satisfactory ground would be to affirm the ESA's take provision where listed species could show a substantial effect on interstate commerce, as in the wolf case. (334) Such a result would limit ESA protection to megafauna, less than half of listed species. (335)

We think defenders of the take provision should emphasize to the Supreme Court the comprehensive scheme rationale which the Court so recently endorsed, (336) stressing the biodiversity protection evident in the ESA's ecosystem protection purpose, (337) and the centrality of the take provision to achieving that purpose. The defenders of the ESA should also argue that without the ESA's comprehensive scheme, the states would engage in a destructive "race to the bottom" that would damage biodiversity and environmental quality. (338) If they do, our crystal ball predicts at least five votes for upholding the constitutionality of the ESA's take provision.

VI. EPILOGUE

While this Article was in press, two developments occurred just three days apart which merit brief mention. First, on March 1, 2004 the Supreme Court denied certiorari in Rancho Viejo v. Norton. (339) Second, three days earlier on February 27, 2004, the Fifth Circuit denied the plaintiff-appellants petition for rehearing and rehearing en banc in GDF Realty Investments, Ltd. v. Norton, with 6 of its 16 active judges dissenting. (340) Judge Edith Jones wrote the dissent, agreeing with the panel's analysis of Commerce Clause precedent, but disagreeing both with its application of the comprehensive scheme principle and the panel's conclusion that species protection did not constitute an invasion of traditional state land-use regulation. (341)

Regarding the former, the dissent asserted that the panel offered "little reasoning" why the regulation of cave species was "an essential part of a larger economic scheme." (342) Judge Jones thought that the GDF Realty panel "convert[ed] the ESA [into an economic regulatory scheme] by opining that the majority of species takes would result from economic activity and 'the Cave Species takes would occur as a result of plaintiffs' planned commercial development'[,]" despite the fact the panel had earlier rejected the argument that commerce connections could stem from the activity regulated. (343) We respectfully disagree. Initially, we note that Judge Jones has no generic quarrel with the "comprehensive scheme" principle of commerce clause jurisprudence since, in another context, she has approved the scheme rationale to justify regulation of non-economic activity. (344) Although the activity regulated in this case was clearly a commercial development, (345) this happenstance was not the trigger that "convert[ed]" the Act into an economic regulatory scheme. As evidenced by its text, legislative history, and application, the ESA is a multi-purpose statute directed at, in the main, activity "economic in nature." (346) In Justice Kennedy's words, the ESA's "structure" and "design" fulfills commercial functions. (347) We think it significant that all three circuit court decisions to address the question--the cave species, red wolf, and arroyo toad cases--concluded that the ESA was unquestionably an economic regulatory scheme. (348)

As to Judge Jones's latter argument, the Fourth, Fifth, and D.C. Circuits all maintained that the regulation of wildlife is a matter of national concern, authority over which is shared with the states. (349) Her dissent here, like Judge Luttig in Gibbs, (350) argued not for safeguarding an area of traditional exclusive state concern but instead, as Chief Judge Wilkinson put it for the Fourth Circuit, for the "dismember[ing]" of "long recognized federal" power. (351) We think that, if the Supreme Court chooses to review the cave species case, it will side with Judge Wilkinson, not Judge Jones, since it has recently reaffirmed the substantial federal role in wildlife regulation. (352)

(1) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(2) For a few examples throughout the last decade, see, e.g., Radanovich to Deliver Keynote Address to Mid Pacific Water Users Conference, U.S. NEWSWIRE, Jan. 22, 2003, 2003 WL 3727146 (draconian); Jonathan Brinckman, Coho Stripped of "Threatened" Status by Judge, OREGONIAN, Sept. 14, 2001, at B1 (draconian); Eric Brazil, Klamath Basin Farmers Losing Irrigation to Save Endangered Fish, S. F. CHRON., May 8, 2001, at A3 (draconian); Endangered Species Act, Out View: Reintroduction of Lynx Shows Why the Law Needs Revision, ROCKY MOUNTAIN NEWS, Jan. 4, 1999, at 3A (inflexible); Jonathan Brinckman, Kitzhaber Champions Resource Cooperation, OREGONIAN, Dec. 5, 1998, at A1 (harsh and inflexible); Rob Taylor, Bulkheads Found to Destroy Some Vital Marine Habitat; A Salmon Fight on the Beach, SEATTLE POST-INTELLIGENCER, Mar. 18, 1999, at A1 (draconian); Tom Kenworthy, Interior Report Says Species Act Works; Law to Protect Endangered Plants, Animals Is Under Attack on Hill, WASH. POST, Oct. 31, 1995, at All (inflexible and heavy handed); J. Madeleine Nash, The $25 Million Bird" As Endangered California Condors Return to the Wild, the Law that Saved Them is Under Attack, TIME, Jan. 27, 1992, at 56 (inflexible).

(3) Donald J. Barry, Amending the Endangered Species Act, The Ransom of Red Chief, and Other Related Topics, 21 ENVTL. L. 587, 589-91 (1991) (discussing bills in the 101st Congress). For a review of some of the ESA reform bills introduced in the 103d and 104th Congresses, see Douglas L. Huth, Endangered Species Act Reauthorization: Congress Proposes a Rewrite with Private Landowners in Mind, 48 OKLA. L. REV. 383 (1995) (discussing bills in the 103d Congress); Nancy Kubasek et al., The Endangered Species Act: Time for a New Approach?, 24 ENVTL. L. 329 (1994) (same); J.B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act." Rediscovering and Redefining the Untapped Power of Federal Agencies' Duty to Conserve Species, 25 ENVTL. L. 1107, 1153-60 (1995) (discussing bills in the 104th Congress); Eva Tompkins, Reauthorization of the Endangered Species Act--A Comparison of Two Bills that Seek to Reform the Endangered Species Act: Senate Bill 768 and House Bill 2275, 6 DICK. J. ENVTL. L. & POL'Y 119 (1997) (same). See also Lawrence Michael Bogert, That's My Story and I'm Stickin' To It: Is the "Best Available" Science Any Available Science Under the Endangered Species Act?, 31 IDAHO L. REV. 85, 140-50 (1994) (discussing why the ESA listing process is prone to error and calling for statutory reform of the listing process); Larry J. Bradfish, Recent Developments in Listing Decisions Under the Endangered Species Act and Their Impact on Salmonids in the Northwest, 3 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 77, 93-97 (1995) (discussing multiple bills to amend the ESA in the 103d and 104th Congresses). For a discussion of the most recent attempt to amend the ESA, see Michael J. Brennan et al., Square Pegs and Round Holes: Application of the "Best Scientific Data Available "Standard in the Endangered Species Act, 16 TUL. ENVTL. L.J. 387, 440-41 (2003) (discussing bills of the 108th Congress).

(4) See, e.g., Fred Bosselman, The Statutory and Constitutional Mandate for a No Surprises Policy, 24 ECOLOGY L.Q. 707, 717-19 (1997) (noting the ESA's mandate for the "No Surprises Policy" for private landowners and the necessity for such agreements under the Constitution); Joseph Sax, The Ecosystem Approach: New Departures for Land and Water" Closing Remarks, 24 ECOLOGY L.Q. 883, 884-86 (1997) (discussing the benefits of assurance agreements to private landowners under the ESA); George Frampton, Ecosystem Management in the Clinton Administration, 7 DUKE ENVTL. L. & POL'Y F. 39, 40 (1996) (discussing the comprehensive management plan put in place to protect the northern spotted owl (Strix occidentalis caurina) and other species while balancing economic interests); see Barton H. Thompson, The Endangered Species Act: A Case Study in Takings and Incentives, 49 STAN. L. REV. 305, 316-18 (1997) (noting the availability of incidental take permits for property owners); Karin L. Sheldon, Habitat Conservation Planning: Addressing the Achilles Heel of the Endangered Species Act, 6 N.Y.U. ENVTL. L.J. 279, 329-26 (1998) (generally discussing the application of the ESA to private property); Jon P. Tasso, Habitat Conservation Plans as Recovery Vehicles: Jump-Starting the Endangered Species Act, 16 U.C.L.A. J. ENVTL. L. & POL'Y 297, 297-318 (1999) (suggesting that habitat conservation plans could further the ESA's goal of recovering listed species); Shi-Ling Hsu, The Potential and the Pitfalls of Habitat Conservation Planning under the Endangared Species Act, 29 Envtl. L. Rep. (Envtl. L. Inst.) 10,592, 10,596-97 (Oct. 1999) (noting that habitat plans tend to benefit businesses and private landowners to the detriment of the ESA's purpose of recovering species). For a related innovation, the use of "Candidate Conservation Agreements" as an alternative to listing a species as endangered, see Nancy K. Kubasek et al., Cross-Examining Market Approaches to Protecting Endangered Species, 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,721, 10,726 (Sept. 2000); Martha Phelps, Candidate Conservation Agreements Under the Endangered Species Act: Prospects and Perils of an Administrative Experiment, 25 B.C. ENVTL. AFF. L. REV. 175 (1997).

(5) 16 U.S.C. [section] 1536(a)(2) (2000).

(6) See, e.g., Michael C. Blumm & Greg D. Corbin, Salmon and the Endangered Species Act." Lessons from the Columbia Basin, 74 WASH. L. REV. 519, 554-55, 581-82, 598-99 (1999) (giving examples of and discussing the National Marine Fisheries Service's willingness to balance cost concerns against salmon protection).

(7) For a discussion of the most recent attempt to amend the ESA, see Brennan et al., supra note 3, at 440-41 (discussing bills of the 108th Congress). For examples of the general continuing call for ESA reform, see Joe Rojas-Burke, Coho Story Excites White House, OREGONIAN, Aug. 13, 2003, at A1; Libby Quaid, Graves: Endangered Species Law Needs Overhaul, AP NEWSWIRE, July 17, 2003, available at http://www.citizenreviewonline.org/july_2003/graves.htm; Dan Fagin, A New Environment: Bush Seeks to Reshape the Laws of Our Land (and Air), NEWSDAY, Jan. 12, 2003, at A4; NATIONAL ENDANGERED SPECIES ACT REFORM COALITION, ISSUE ALERT, LEGISLATORS CALL FOR ESA REFORM AFTER SILVERY MINNOW COURT DECISION (June 24, 2003), available at http://www.nesarc.org/minnow.pdf; Press Release, Rep. Greg Walden, (R-Or.), Walden ReIntroduces Legislation to Add Peer Review to Endangered Species Act (Apr. 8, 2003), available at http://walden.house.gov/press/releases/2003/04Apr/pr0408a03.htm.

(8) See, e.g., Ariz. Cattle Growers' Ass'n v. United States Fish & Wildlife Serv., 273 F.3d 1229 (9th Cir. 2001) (challenging the U.S. Fish and Wildlife Service's incidental take statement, which prohibited cattle grazing in areas where habitat modification could occur); Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001) (challenging final National Marine Fisheries Service rule listing coho salmon as threatened); N.M. Cattle Growers' Ass'n v. United States Fish & Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001) (challenging critical habitat designations for the southwestern willow flycatcher (Emphidonax traillii extimus)); Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001) (challenging EPA's imposition of water-use restrictions as a prohibited taking under the Fifth Amendment); Kandra v. U.S., 145 F. Supp. 2d 1192 (D. Or. 2001) (challenging the suspension of irrigation deliveries, intended to maintain water levels for threatened and endangered fish species, as a breach contract water rights). For more on the Klamath conflict, see Holly Doremus & A. Dan Tarlock, Fish, Farms, and the Clash of Cultures in the Klamath Basin, 30 ECOLOGY L.Q. 279 (2003) (discussing the controversial role of the ESA as a tool for environmental protection and suggesting possible alternatives for sharing limited water resources in the future).

(9) Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or. (Sweet Home), 515 U.S. 687 (1995); see 16 U.S.C. [section] 1538(a)(1)(B) (2000) (prohibiting the "take" of listed species); 50 C.F.R. [section] 17.3 (2003) (defining "take" to include significant habitat destruction or degradation).

(10) Section 9 of the ESA prohibits "any person" from taking listed species. 16 U.S.C. [section] 1538(a)(1)(B) (2000).

(11) Sweet Home, 515 U.S. at 708 (upholding the Secretary of the Interior's regulatory definition of "take" to include "significant habitat modification or degradation that actually kills or injures wildlife" as reasonable in light of the ordinary meaning of "harm" and the broad purpose and intent of the ESA).

(12) See infra Section II.

(13) See, e.g., Zygmunt Z.B. Plater, The Embattled Social Utilities of the Endangered Species Act--A Noah Presumption and a Caution Against Putting Gas Masks on the Canaries in the Coalmine, 27 ENVTL. L. 845 (1997) (discussing the ESA's protections as fulfilling basic human social interests).

(14) See, e.g., STEPHEN R. KELLERT, THE VALUE OF LIFE: BIOLOGICAL DIVERSITY AND HUMAN SOCIETY 6 (1996) (noting the moralistic, humanistic, naturalistic, and aesthetic justifications for species protection).

(15) See Plater, supra note 13, at 852-54; Oliver A. Houck, Why Do We Protect Endangered Species and What Does That Say About Whether Restrictions on Private Property to Protect Them Constitute "Takings"?, 80 IOWA L. REV. 297, 327-28 (1995) (describing endangered species as "wildlife indicators" and the ESA as a test of Earth pollution levels); John Copeland Nagle, Playing Noah, 82 MINN. L. REV. 1171, 1212-13 (1998) (discussing the "canary-in-the-mine" rationale for the ESA)).

(16) But note that while it did not expressly include the commercial value of species protection, Congress emphasized a wide variety of ensuing human benefits. See 16 U.S.C. [section] 1531(a)(3) (2000) (expressing congressional determination that endangered "species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value"). Congress also drew a direct connection between species loss and unrestrained economic growth and commercial development. Id. [section] 1531(a)(1).

(17) See infra Section III.

(18) We highlight "conservative" because we think that their conservatism does not extend to the exercise of judicial power. See, e.g., the colloquy between Judges Wilkinson and Luttig, infra notes 175-79 and accompanying text, in which Chief Judge Wilkinson accused Judge Luttig of espousing unwarranted judicial activism.

(19) See infra Section III.

(20) The term was coined in the modern era first in Younger v. Harris, 401 U.S. 37, 44 (1971) (Brennan, J.) (noting that the concept represents "a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government ... always endeavors to [act] in ways that will not unduly interfere with the legitimate activities of the States'). For further discussion of this concept, see Alden v. Maine, 527 U.S. 706, 748 (1999) (Kennedy, J.) ("Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation."); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587 (1999) (Ginsberg, J.) (stating that "Out Federalism" means neither complete centralization nor "blind deference" to the rights of States, but requires "sensitivity to the legitimate interests" of both governments); Printz v. United States, 521 U.S. 898, 921 (1997) (Scalia, J.) (maintaining that the separation of state and federal governments "is one of the Constitution's structural protections of liberty"); Camp Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 612 (1997) (Thomas, J., dissenting) (rejecting the "negative Commerce Clause" because it has "no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application"); United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring) ("[O]ur federalism" allows the States, as laboratories, "to devise various solutions where the best solution is far from clear."); Ankenbrant v. Richards, 504 U.S. 689, 705 (1992) (White, J.) (refusing to extend the notion of comity, which the court deemed "critical to Younger's 'Out Federalism,'" when there is no pending state proceeding); Deakins v. Monaghan, 484 U.S. 193, 208-09 (1988) (White, J., concurring) (arguing that "Our Federalism" means that federal courts should not adjudicate claims for damages while a state criminal case dealing with the same issue is pending); Kelly v. Robinson, 479 U.S. 36, 49 (1986) (Powell, J.) (using concept of "out federalism" to aid in the Court's interpretation of the Bankruptcy Code); Murray v. Carrier, 477 U.S. 478, 500 (1986) (Stevens, J., concurring) (discussing the complexities of "our federalism" and the interplay of state and federal governments when a habeas corpus petition is filed); Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 103 (1981) (Rehnquist, J.) (reflecting on "the fundamental principle of comity between federal courts and state governments that is essential to 'Our Federalism'"); Hicks v. Miranda, 422 U.S. 332, 356-57 (1975) (Stewart, J., dissenting) (arguing that the converse of Younger should hold true, and "'Out Federalism" should not allow state courts to interfere with the legitimate functioning of federal courts).

(21) See infra Section II. The Court had not struck down a federal statute on Commerce Clause grounds in nearly sixty years, the last time being Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936) (holding that Congress lacked Commerce Clause authority to regulate maximum hours and minimum wages in the coal industry because coal mining and processing were "production," not commerce; "production is a purely local activity").

(22) 514 U.S. 549, 568 (1995) (Kennedy, J., concurring).

(23) See infra notes 61-73 and accompanying text.

(24) See infra notes 169-73, 198, 231-33, 280-81, 352, and accompanying text. See also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999) (explaining that states share authority to manage wildlife with the federal government).

(25) 16 U.S.C. [section] 1531(a)(1) (2000).

(26) H.R. REP. NO. 93-412, at 2 (1973), reprinted in COMM. ON ENVIRONMENT AND PUBLIC WORKS, 97TH CONG., A LEGISLATIVE HISTORY OF THE ENDANGERED SPECIES ACT OF 1973, AS AMENDED IN 1976, 1977, 1978, 1979, AND 1980, at 149 (Comm. Print 1982).

(27) U.S. CONST., art. I, [section] 8, cl. 2. The ESA could also be sustained under either the Treaty Clause or the Property Clause powers. Id., art. VI, cl. 2 (Treaty Clause); id. art. IV, [section] 3, cl. 2 (Property Clause). Fulfilling international treaty obligations is clearly a purpose of the ESA. See 16 U.S.C. [section] 1531(a)(4) (2000) (listing at least six international treaties related to endangered species protection); id. [section] 1531(b) (stating that the purposes of the Act include taking "such steps as may be appropriate to achieve the purposes" of the treaties mentioned in subsection (a)(4)). Commentators have disagreed over whether existing treaty obligations would justify the Act's take provision. See Gavin R. Villareal, One Leg to Stand On: The Treaty Power and Congressional Authority For the Endangered Species Act After United States v. Lopez, 76 TEX. L. REV. 1125, 1161 (1998) (concluding that the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Western Convention) justifies the ESA's habitat protection); Omar N. White, The Endangered Species Act's Precarious Perch: A Constitutional Analysis Under the Commerce Clause and the Treaty Power, 27 ECOLOGY L.Q. 215, 230-31 (2000) (maintaining that the Western Convention only justifies the ESA's take provision for eight species listed both in the annex of the convention and under the ESA). This latter interpretation of the ESA protections predicated upon the Western Convention stems from Article VIII of the convention, specifying that only species listed in the treaty's Annex "shall be protected as completely as possible, and their hunting, killing, capturing, or taking shall be allowed only with the permission of the appropriate government authorities." Convention Between the United States of America and Other American Republics Respecting Nature Protection and Wildlife Preservation in the Western Hemisphere, Oct. 12, 1940, art. VIII, 56 Stat. 1354, 1366, 161 U.N.T.S. 193, 200 (entered into force April 30, 1940) [hereinafter Western Convention]; see also 16 U.S.C. [section] 1537(a) (2000) (authorizing the President to assist foreign countries to develop conservation plans for endangered species). However, Article V of the Western Convention, which is not limited to species listed in the Annex, commits the signatory governments "to adopt ... suitable laws and regulations for the protection and preservation of flora and fauna with their natural boundaries ... [outside] natural parks, national reserves, nature monuments, or strict wilderness reserves." Western Convention, supra, art. V, cl. 1, 56 Stat. at 1362-64, 161 U.N.T.S. at 198.

The United States has signed, but has yet to ratify, the Convention on Biological Diversity, written at the 1992 Earth Summit in Rio de Janeiro, which would commit the U.S. to "promote the recovery of threatened species." Convention on Biological Diversity, June 5, 1992, art. 8(f), 31 I.L.M. 818. Both Article 18 of the Vienna Convention on the Law of Treaties and section 312 of the Restatement of Foreign Relations Law of the United States maintain that prior to the entry into force of a treaty, a country that has consented to it may not take steps that would defeat its purpose. The Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 18, 1155 U.N.T.S. 331, 336, 25 I.L.M. 556 (entered into force Jan. 27, 1980); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 312(3) (1987).

The Property Clause would serve to justify the ESA take provision for species inhabiting federal lands and for species whose extinction would harm or threaten to harm public lands. See, e.g., Camfield v. United States, 167 U.S. 518, 525 (1897) (using the Property Clause to justify tearing down fences on private land); United States v. Alford, 274 U.S. 264, 267 (1927) (using the Property Clause to justify prohibiting fires on private lands that endanger national forests); 1 GEORGE C. COGGINS & ROBERT L. GLICKSMAN, PUBLIC NATURAL RESOURCES LAW [section] 3.14 (rev. ed. 2003) (collecting numerous other lower court cases on the extraterritoriality of the Property Clause power); Peter A. Appel, The Power of Congress is "Without Limitation": The Property Clause and Federal Regulation of Private Property, 86 MINN. L. REV. 1, 94-96 (2001) (maintaining that the reach of the Property Clause power is determined by whether the aggregated effects of extraterritorial activities are "substantially related to" federal property); see also id. at 122 (suggesting that the Property Clause could justify federal regulation of listed species off federal property if the species sometimes inhabited federal lands and Congress determined that such extraterritorial regulation was important to the overall value of federal lands); Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265, 292 (1991) (asserting that the Court's reasoning in Kleppe v. New Mexico, 426 U.S. 529 (1976), upholding the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. [subsection] 1331-1340 (1988), on Property Clause grounds, "could justify federal protection of virtually any biological resource"). The Property Clause would thus seem to justify federal regulation of many more species than the Treaty Clause, but it would not support regulation of those species with no connection to federal public lands. This would appear to be the case with the Delhi Sands flower-loving fly (Rhaphiomidas terminatus abdominalis), the Texas cave species, and perhaps the southwestern arroyo toad (Bufo californicus).

(28) See supra note 21 and accompanying text.

(29) Hodel v. Virginia Surface Mining & Reclamation Ass'n (Va. Surface Mining), 452 U.S. 264, 268 (1981) (upholding federal reclamation requirements); Hodel v. Indiana, 452 U.S. 314, 317 (1981) (upholding federal regulations restricting surface or mining prime farmland).

(30) Perez v. United States, 402 U.S. 146, 147 (1971).

(31) Katzanbach v. McClung, 379 U.S. 294, 304-05 (1964).

(32) Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 261 (1964).

(33) Wickard v. Filburn, 317 U.S. 111, 128-29 (1942).

(34) Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. [subsection] 1201, 1202, 1211, 1231-1279, 1281, 1291-1309, 1309a, 1309b, 1311-1316, 1321-1328 (2000).

(35) Va. Surface Mining, 452 U.S. 264, 282 (1981) (also citing congressional findings that "many surface mining operations [burden] and adversely affect commerce and the public welfare by destroying [the] utility of land [by] causing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, [and] by impairing [natural beauty]").

(36) Wickard, 317 U.S. at 127-28 (upholding Commerce Clause regulation of a farmer's wheat grown for home consumption, on the ground that this consumption, when considered with the home wheat consumption of other farmers, was "far from trivial").

(37) See, e.g., JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 171-259 (1980).

(38) Pub. L. No. 101-647, Title XVII, [section] 1702, 104 Stat. 4844 (1990).

(39) Id. Note, however, that in signing the GFSZA, the first President Bush seemed to invite litigation with the following statement: "Most egregiously, [the GFSZA] inappropriately overrides legitimate State firearms law with a new and unnecessary Federal law. The policies reflected in [the provisions of the Act prohibiting gun possession] could legitimately be adopted by the States, but they should not be imposed upon the States by Congress." Statement of President George Bush Upon Signing S. 3266, Pub. L. No. 101-647, reprinted in 1990 U.S.C.C.A.N. 6696-1 (1990).

(40) 18 U.S.C. [section] 921(a)(25) (2000).

(41) The student was first charged with violating a Texas law prohibiting firearms on school premises, but those charges were dismissed after he was federally charged. Lopez, 514 U.S. 549, 551 (1995). The student actually brought the gun to school to complete a sale. Chief Justice Rehnquist's opinion never mentioned this fact, although it appeared in the Fifth Circuit's opinion. United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993), aff'd 514 U.S. 549 (1995).

(42) Lopez, 514 U.S. at 551.

(43) Id. at 352.

(44) United States v. Lopez, 2 F.3d at 1367-68.

(45) See supra note 21.

(46) Justices Stevens, Souter, Ginsberg, and Breyer dissented in three separate opinions. Lopez, 514 U.S. at 602 (Stevens, J., dissenting); id. at 603 (Souter, J., dissenting); id at 614 (Breyer, J., dissenting).

(47) Id. at 552.

(48) The opinion amounted to a restatement of the Commerce Clause decisions from Gibbons v. Ogden, 9 Wheat. 1, 189-90 (1824), to Va. Surface Mining, 452 U.S. 264, 266-70 (1981). See Lopez, 514 U.S. at 553-59.

(49) Lopez, 514 U.S. at 558-59 (citing cases, including Va. Surface Mining, 452 U.S. at 276-77, which the Court cited for all three categories).

(50) The effect was to make a majority opinion of then Associate Justice Rehnquist's concurrences in the surface mining cases, cited supra note 29. See, e.g., Hodel v. Indiana, 452 U.S. 314, 307 (1981) (Rehnquist, J., concurring).

(51) As subsequently paraphrased by the Chief Justice in United States v. Morrison (Morrison), these factors are: 1) whether the statute regulates commerce or an economic activity; 2) whether the statute has an express jurisdictional limit restricting its application to activities with an explicit connection or effect on interstate commerce; 3) whether the statute contains congressional findings indicating that the activity has a substantial effect on interstate commerce; and 4) whether the activity has too attenuated an effect on interstate commerce. Morrison, 529 U.S. 598, 610-12 (2000).

(52) Lopez, 514 U.S. at 561 (citing 18 U.S.C. [section] 922(q)).

(53) Id. at 559.

(54) Id. at 561.

(55) Id. ("Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.").

(56) Id.

(57) Id. at 562. The Court clarified that Congress did hot have to make formal findings, but observed that findings were helpful for judicial evaluation when no substantial effect on interstate commerce was "visible to the naked eye." Id. at 562-63.

(58) Id. at 564-67.

(59) The government argued that the "costs of crime" (e.g., insurance increases and less travel due to safety concerns) and reduced national productivity (e.g., crime in schools producing an inadequate educational process and consequently a less productive work force and a poorer economy) illustrated the requisite adverse effects on interstate commerce. Id. at 564 (internal quotations omitted). The Court responded that under such reasoning Congress could regulate any activity related to the economic productivity of individual citizens, including family law matters such as marriage, divorce, and child custody. Id. at 564, 567.

(60) Id. at 564, 568.

(61) Id. at 568 (Kennedy, J., concurring). Justice Thomas also wrote a concurrence, joined by no other justice, in which he called for reconsideration of the "substantial effects" aspect of Commerce Clause jurisprudence, suggesting that it was inconsistent with original intent, the Court's early Commerce Clause cases, and the notion of a federal government of limited and defined powers. Id. at 584 (Thomas, J., concurring). See also Morrison, 529 U.S. 598, 627 (2000) (Thomas, J., concurring) ("By continuing to apply this rootless and malleable standard [the "substantial effects" test] ... the Court has encouraged the Federal Government to persist in its view that the Commerce Clause virtually has no limits.").

(62) Lopez, 514 U.S. at 568 (Kennedy, J., concurring). See also id. at 577 ("Whatever the judicial role, it is axiomatic that Congress does have substantial discretion and control over the federal balance.").

(63) Id.

(64) 156 U.S. 1 (1895) (finding that the sugar refining cartel, which processed 98% of the sugar consumed in the country, was not subject to Commerce Clause regulation under the Sherman Act because it was engaged in "manufacturing," not "commerce").

(65) Lopez, 514 U.S. at 574 (Kennedy, J., concurring). Justice Kennedy observed that "Congress can regulate in the commercial sphere on the assumption we have a single market and a unified purpose to build a stable economy." Id.

(66) Id. at 575 (Kennedy, J., concurring).

(67) Id. at 578 (Kennedy, J., concurring).

(68) Id. (Kennedy, J., concurring) (citing Chief Justice Rehnquist's opinion, id. at 559-61).

(69) Id. (Kennedy, J., concurring).

(70) Id. at 583 (Kennedy, J., concurring).

(71) Id. at 581, 583 (Kennedy, J., concurring).

(72) Id. at 577 (Kennedy, J., concurring).

(73) Id. at 583 (Kennedy, J., concurring). Thus, Justice Kennedy seemed to suggest that a successful challenge to a Commerce Clause-based statutory provision had to meet a two part test: 1) no strong nexus to commerce; and 2) an invasion into an area of traditional state concern. As discussed below, the commercial nexus may be established by the commercial nature of the regulated species, the commercial nature of the activity itself, or the commercial nature of the regulatory scheme. See infra notes 246-89 and accompanying text.

The commentary on Lopez includes: Stephen M. Johnson, U.S. v. Lopez: A Misstep But Hardly Epochal For Federal Environmental Regulation, 5 N.Y.U. ENVTL. L.J. 33 (1996); Glenn H. Reynolds & Brannon P. Denning, Lower Court Readings of Lopez, or What if the Supreme Court Held a Constitutional Revolution and Nobody Came?, 2000 WIS. L. REV. 369; and Christine A. Klein, The Environmental Commerce Clause, 27 HARV. ENVTL. L. REV. 1, 28-31 (2003).

(74) 42 U.S.C. [subsection] 13931-14053 (2000).

(75) 42 U.S.C. [section] 13981 states that all persons in the United States have a right to be free from crimes of violence motivated by gender and gives individual victims of such crimes (defined as constituting felonies presenting a serious risk of physical injury) the right to compensatory and punitive damages and injunctive and declaratory relief. Id. [section] 13981(b)-(d).

(76) Morrison, 529 U.S. 598, 602 (2000).

(77) Id. at 602-03. The school determined that there was insufficient evidence against the other student-player. Id. at 603.

(78) Morrison was subsequently round guilty of the school's Abusive Conduct Policy for using abusive language, but the university's senior vice president and provost set aside the punishment as excessive in light of other punishments under that policy. Id. at 603.

(79) The victim also alleged that Virginia Tech violated Title IX of the Education Amendments of 1972, 20 U.S.C. [subsection] 1681-1688, but the district court dismissed this claim. Brzonkala v. Va. Polytechnic & State Univ. (Brzonkala I), 935 F. Supp. 779, 781 (W.D. Va. 1996). The full Fourth Circuit remanded, indicating that the victim may have a hostile environment claim under Title IX. Brzonkala v. Va. Polytechnic Inst. & State Univ. (Brzonkala II), 169 F.3d 820, 827 n.2 (4th Cir. 1999) (en banc), aff'd, Morrison, 529 U.S. 598 (2000).

(80) Brzonkala I, 935 F. Supp. at 801.

(81) Brzonkala II, 169 F.3d at 889, vacating 132 F.3d 949 (4th Cir. 1997).

(82) Morrison, 529 U.S. at 607 (citing, inter alia, Lopez, 514 U.S. 549, 577-78 (1995)).

(83) Id. at 608 (quoting Lopez, 514 U.S. at 556-57 (citations omitted)).

(84) Id. at 610. See also id. at 610-11 (citing both the majority opinion in Lopez and Justice Kennedy's concurrence numerous times to illustrate the importance of the noneconomic nature of the conduct to that decision).

(85) Id. at 613.

(86) See infra notes 145-241 and accompanying text (discussing the red wolf (Canis rufus), Texas cave species, and arroyo toad cases).

(87) Morrison, 529 U.S. at 613 (citing Lopez, 514 U.S. at 559-60).

(88) The majority also faulted VAWA for lacking a jurisdictional element that would support a conclusion that the statute was sufficiently linked to interstate commerce. Even though the statute did contain congressional findings about the substantial effects of gender-motivated violence on interstate commerce, the congressional findings did not bind the Court. Id. at 613-14. Chief Justice Rehnquist thought that both the congressional findings and the government's arguments in court were too attenuated:

   If accepted, petitioners' reasoning would allow