Clear the air.

• Author: Blumm, Michael

Gonzalez v. Raich, the "Comprehensive Scheme" Principle, and the Constitutionality of the Endangered Species Act, by Michael C. Blumm * & George A. Kimbrell **

Dear Editors of Environmental Law,

Our 2004 article, Flies, Spiders, Toads, Wolves, and the Constitutionality of the Endangered Species Act's Take Provision (1) analyzed the four federal circuit court cases in which litigants have argued that the take provision of the Endangered Species Act (ESA) is an unconstitutional exercise of Congress's Commerce Clause power. (2) Each federal court of appeals confronted with the issue has upheld the ESA's constitutionality, but on differing grounds. (3) The article evaluated each court's reasoning, focusing on the likelihood of each rationale being adopted by the Supreme Court. (4) We concluded that the Court would clearly uphold the constitutionality of the ESA's take provision in situations where either the listed species or the activity causing the take of that species had in the aggregate a substantial effect on interstate commerce. (5) However, adoption of either (or both) rationale would leave some species--intrastate species without a substantial effect on interstate commerce--and some forms of takes--those caused by noncommercial activity--possibly beyond the constitutional scope of the ESA. (6)

Our article maintained that a far better outcome---likely protecting all listed species from all types of takes--would result from the Court's approving of the "comprehensive scheme" rationale relied upon by the Fourth and Fifth Circuits. (7) According to the comprehensive scheme principle, federal regulation of noncommercial, intrastate activity is constitutionally permissible under the Commerce Clause if the regulation 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." (8) The ESA is such a comprehensive regulatory scheme--aimed in part at preserving the economic benefits of biodiversity and avoiding economically destructive interstate competition--that would be fatally undercut if piecemeal species extinction was permitted simply because the specific listed species or activity causing the take alone lacked a substantial effect on interstate commerce. (9)

While we viewed the Supreme Court affirming the comprehensive scheme principle as the best possible outcome, whether the Court would adopt the rationale was far from a foregone conclusion when we wrote. The Court had merely noted the theory in a passing sentence in United States v. Lopez. (10) And only one of the four appellate panels we analyzed relied on the ESA-as-a-comprehensive-scheme rationale in the main: the Fifth Circuit decision in GDF Realty Investments, Ltd. v. Norton (GDF Realty). (11) That decision narrowly escaped being vacated and reheard en banc, with known Federalist Society member (12) (and potential Supreme Court nominee (13)) Judge Edith Jones dissenting from the Fifth Circuit majority's decision not to rehear the case. (14) We added a short epilogue to our article responding to Judge Jones' dissent from the denial, predicted that the Supreme Court would side with the majority of the Fifth Circuit, and waited for the outcome of the appellant's

petition for certiorari. (15) Despite our optimism, it was quite unclear whether the Supreme Court would agree. (16)

The Court initially held conference on the GDF Realty certiorari petition on October 8, 2004, (17) but delayed its decision whether to grant or deny certiorari in the case, presumably because it was about to hear argument in another case focused on the regulation of noneconomic, intrastate activity under the Commerce Clause: Gonzalez v. Raich. (18) In Ralch, users and growers of medical marijuana, legal under California's Compassionate Use Act of 1996, (19) sought a declaration that the federal Controlled Substances Act (20) (CSA) was unconstitutional as applied to their intrastate manufacture and possession of marijuana. (21) On June 9, 2005, in a 6 to 3 ruling reversing the Ninth Circuit, the Court held that the application of the CSA provisions criminalizing the manufacture, distribution, or possession of marijuana to intrastate California growers and users of marijuana did not violate the Commerce Clause. (22)

We believe the Raich decision "cleared the air" concerning several important questions previously left unanswered. First and foremost, as we predicted, the Fourth and Fifth Circuit's reliance on the comprehensive scheme principle was justified: Raich is a resounding affirmation of the principle's validity, firmly securing its place in the Supreme Court's Commerce Clause jurisprudence. Writing for the majority, Justice Stevens held that the classification of marijuana as a drug regulated under the CSA was one of many "essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." (23) The majority dismissed the respondents' (and the dissenters') "myopic focus" and "heavy reliance" on the Rehnquist Court's earlier Lopez and Morrison decisions for the proposition that noneconomic, intrastate activity could not be aggregated, and therefore could not produce the requisite effect on interstate commerce to be regulated under the Commerce Clause. (24) In the majority's view, the respondents read its recent precedents "far too broadly." (25) The Court noted that it need not determine that the respondents' activities, taken in the aggregate, substantially affect interstate commerce, "but only whether a rational basis exists for so concluding." (26) Congress did have such a rational basis because, according to the Court, the "failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA." (27) That the CSA's regulatory scheme "ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme." (28)

Justice Scalia concurred separately in the judgment, (29) agreeing that Congress "could reasonably conclude that its objective of prohibiting...