The proper meaning of "proper": why the regulation of intrastate, non-commercial species under the Endangered Species Act is an invalid exercise of the commerce clause.

• Author: Simpson, Kevin

INTRODUCTION

California has a new endangered species on its hands in the San Joaquin Valley--farmers. Thanks to environmental regulations designed to protect the likes of the three-inch long delta smelt, one of America's premier agricultural regions is suffering in a drought made worse by federal regulations.... [T]ens of billions of gallons of water from mountains east and north of Sacramento have been channelled away from farmers and into the ocean, leaving hundreds of thousands of acres of arable land fallow or scorched.... The result has already been devastating for the state's farm economy. In the inland areas affected by the court-ordered water restrictions, the jobless rate has hit 14.3%, with some farming towns like Mendota seeing unemployment numbers near 40%. Statewide, the rate reached 11.6% in July, higher than it has been in 30 years. (1) In 1973, Congress enacted the Endangered Species Act (2) ("ESA" or the "Act") in response to a growing awareness of the interconnected nature of the ecosystem and the need to maintain species diversity. (3) The ESA arms its administering agencies (4) with ample weaponry to achieve that end. (5) The "take" provision in section 1538 of the Act prohibits the fishing, hunting, or harming of any species listed on the Act's endangered species list. (6) To ensure enforcement of the take provision, the ESA authorizes the United States Fish and Wildlife Service (7) ("FWS") to designate a "critical habitat" for each endangered species. (8) Section 1536 gives regulatory bite to this authority by allowing the FWS to issue biological opinions dictating how federal agencies and affected private parties should act to preserve these critical habitats. (9) Developers, farmers, and other adversely impacted private parties have frequently clashed with the FWS and various environmental groups over the limits of this authority. (10) The delta smelt in California is just one among many instances where various competing interests have tussled over how best to balance short-term economic, agricultural, and development concerns with long-term environmental vitality.

But below the surface of these difficult policy issues lies an equally tangled and critical issue of constitutional law. Congress enacted the ESA under the authority of the Article I Interstate Commerce Clause. (11) Because the ESA primarily regulates species and activities that flow through interstate commerce, Congress's reliance on the Commerce Clause is facially sound. (12) But many species regulated by the ESA are found only within the confines of one state and have no commercial value, and thus are not involved in "interstate commerce" in the term's ordinary sense. (13) This apparent regulatory overreach has given rise to claims that the ESA, as applied to certain intrastate, non-commercial species, is an invalid exercise of the commerce power. But since 2000, all five federal circuits deciding as-applied challenges to the ESA have, under various and conflicting analyses, upheld the agency action. (14) The Supreme Court has left the question open; although the Court has decided ESA cases on issues of standing and statutory construction, (15) it has yet to grant certiorari in a case challenging the Act's constitutionality. (16)

This Note argues that the ESA's regulation of purely intrastate, noncommercial species is an invalid exercise of the Commerce Clause. Reviewing courts have reached the opposite conclusion via two doctrinal avenues: (1) by finding that the species in question bore "a substantial relation to interstate commerce" in satisfaction of the Court's framework set forth in United States v. Lopez, (17) or (2) by holding that the species was an "essential part[] of a larger regulation of economic activity," an alternate path to Commerce Clause validity employed by the Court in its 2005 Gonzales v. Raich decision. (18) Though these doctrines have the Court's approval, they do not flow from the commerce power alone. Because these approaches allow for regulation of objects or activities that merely affect interstate commerce, both implicitly rely on the classic constitutional catch-all: the Necessary and Proper Clause. (19) This reliance requires that the regulation be both necessary for the achievement of a legitimate congressional purpose and constitutionally proper in its means of attaining it. (20) Because the ESA's regulation of intrastate, noncommercial species impermissibly encroaches on areas of traditional state sovereignty, it is not constitutionally "proper," and is therefore unconstitutional.

Although many scholars have addressed the validity of the ESA as applied to intrastate, non-commercial species, the discussion has largely taken place within the framework employed by the lower federal courts. (21) This Note is the first to contend that the Act is an invalid exercise of its true constitutional anchor: the Necessary and Proper Clause. (22) Part I of this Note examines the development of the Court's Necessary and Proper doctrine, with particular focus on the "proper" element. Part II explores the relationship between the Necessary and Proper Clause and the Court's Commerce Clause jurisprudence, and Part III discusses the lower court rulings on the ESA's constitutionality and explains why the ESA's regulation of intrastate, non-commercial species is not "proper."

1. REGULATION ENACTED PURSUANT TO THE NECESSARY AND PROPER CLAUSE MUST BE BOTH "NECESSARY" AND "PROPER"

   The Supreme Court's modern Necessary and Proper Clause jurisprudence dates back to McCulloch v. Maryland, (23) when Chief Justice Marshall held that the establishment of a national bank was necessary and proper for carrying into execution Congress's enumerated Article I powers. (24) Though prior decisions had held that this clause only supplemented, and did not add to, Congress's powers, Marshall read the

   Clause to allow Congressional acts that would otherwise have been plainly beyond the scope of Article I. (25) Later cases relied on this concept of implied powers to validate far-reaching congressional regulation. In the Commerce Clause context, for example, the Court in United States v. Darby upheld a statute requiring employers to keep records of intrastate transactions, because good record-keeping was necessary to ensure that Congress's regulatory labor scheme was properly implemented. (26)

   Though Justice Marshall wrote that the terms "necessary" and "proper" were "probably to be considered as synon[y]mous," (27) later cases began to treat the two terms separately. While "necessary" came to mean "convenient" or "reasonably adapted," (28) and not actually necessary in the denotative sense of the word, the Court understands "proper" to invoke the Constitution's external limits on Congress's power. (29) Thus, even if a regulation were necessary to effectuate Congress's power over interstate commerce, it could still be improper because it violated, say, the Tenth Amendment. (30)

   These external limits include federalism concerns and respect for traditional areas of state sovereignty such as land use, (31) criminal law, (32) and more. (33) The word "proper" in the Clause, then, demands that Congress respect those areas not allocated to them in Article I. In the context of regulation of commerce, the Court has held since Gibbons v. Ogden (34) that the powers retained by the states include purely intrastate commerce: "[t]he enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State." (35)

   Although the Court had previously hinted that it is possible for a Congressional act to be "necessary" but not "proper," (36) Chief Justice Robert's opinion in NFIB v. Sebelius (37) gave new force to this distinction and greatly expanded the ways in which legislation could fail to be "proper." Although the disjointed nature of the NFIB opinions makes it unclear what in the case actually constitutes a holding and what is dicta, (38) five of the justices felt that Congress's mandate that all persons purchase health insurance was invalid under the commerce power, even as supplemented by the Necessary and Proper clause. (39) The reason, they said, is that while the mandate may have been necessary, it was not proper. Roberts recognized that "[i]t is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause." (40) He added that "Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it." (41) Justice Roberts cited Printz v. United States (42) as an example of legislation that was improper because it violated the Tenth Amendment's concept of state sovereignty. (43) Significantly, NFIB is the first case to explicitly strike down regulation under the Commerce Clause, even as supplemented by the Necessary and Proper Clause.

   Together, these cases set forth a bright-line rule: congressional enactments pursuant to the Necessary and Proper Clause must be both "necessary" and "proper." But while that rule may be easy to articulate, it is difficult to apply.

2. THE COURT'S MODERN COMMERCE CLAUSE DOCTRINE INHERENTLY RELIES UPON THE NECESSARY AND PROPER CLAUSE

   1. Pre-Lopez Development of the Commerce Clause Doctrine was Expressly Tied to the Necessary and Propery Clause

      In his majority opinion in NFIB, Chief Justice Roberts quipped that "[t]he path of our Commerce Clause decisions has not always run smooth." (44) This understatement puts a diplomatic gloss on nearly 200 years of mixed signals in the Court's Commerce Clause jurisprudence. But on this twisting course from Gibbons v. Ogden (45) in 1824 to the Court's most recent Commerce Clause decision in NFIB, the development of the doctrine has an unmistakable trend: expansion. (46) In the...