Newspaper column: Constitution stretched to the breaking point

A Utah prairie dog peeks out of an artificial burrow after arriving at a remote site in the desert, some 25 miles away from Cedar City, Utah. (AP pix via WSJ)

If words can mean anything anyone says they mean, then words are meaningless. That is what the 10th U.S. Circuit Court of Appeals has done with the Commerce Clause of the Constitution.

The appellate court overturned a federal judge who found that the Commerce Clause does not give Congress the power under the Endangered Species Act (ESA) to regulate a species that exists only within the boundaries of one state and has no commercial value whatsoever — specifically the Utah prairie dog.

Nevada has joined with Utah and 21 other states to ask the U.S. Supreme Court to strike the circuit court ruling, saying that if the ruling stands “then Congress has virtually limitless authority, and the Tenth Amendment is a dead letter,” as well as the concept of federalism. (prairiedogamicusbrief)

If Nevada is to have any control over any economic activity within its borders, which include numerous endangered and threatened species, it is vital that the high court reverse this Constitution-rendering exercise in legerdemain.

The circuit court judges stretched the meaning of the Commerce Clause — which gives Congress the power to regulate interstate commerce in order to promote commerce by preventing interstate tariffs — to include anything Congress could imagine in its wildest flights of fantasy.

“We conclude that Congress had a rational basis to believe that regulation of the take of the Utah prairie dog on nonfederal land is an essential part of the ESA’s broader regulatory scheme which, in the aggregate, substantially affects interstate commerce,” the circuit court ruled, without any hint as whether that conclusion was at all rational rather than delusional sophistry.

The judges dived further into base speculation by stating, “‘ESA’s drafters were concerned by the “incalculable” value of the genetic heritage that might be lost absent regulation,’ as well as observing that the majority of takes of species ‘result from economic activity …’” Might that incalculable value be zero? Species became extinct before mankind arrived on the scene.

The amicus brief filed by the attorneys general of 23 states paraphrased the 10th Amendment in the Bill of Rights by stating, “The Framers correctly concluded that both restraints – separation of powers and federalism – are necessary to preserve individual liberty and avoid tyranny. So powers not given to the federal government are reserved for the States and the people. But federalism serves its purposes only if the federal-state interplay remains properly balanced. That means courts must ensure that the federal government operates only within its enumerated powers so the States can function within their proper spheres.”

Adding insult to constitutional injury is the fact the state of Utah was actually doing a better job of protecting the prairie dog population than the U.S. Fish and Wildlife Service.

The Fish and Wildlife rules made it a federal crime to “take” the Utah prairie dog — which means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect — without first obtaining time-consuming and expensive federal permits. Meanwhile, the burrowing prairie dogs were damaging parks, sports fields, airports and cemeteries and preventing the construction of homes and businesses. Especially hard hit is the small college town Cedar City.

During the time after the federal judge blocked the Fish and Wildlife rules the state of Utah spent a considerable amount of money to move the prairie dogs from population centers to remote and safer conservation areas, allowing the population to boom from a low of 24,000 in 1984 to an estimated 80,000 today.

The original lawsuit was brought by 200 private property owners calling themselves People for the Ethical Treatment of Property Owners. They were represented by the Pacific Legal Foundation (PLF), which litigates on behalf of personal liberty and property rights.

“For decades, the federal government’s harmful Utah prairie dog regulation has prohibited residents of Cedar City from doing things that most of us take for granted in our own communities,” PLF attorney Jonathan Wood is quoted as saying in a press release. “They have been blocked from building homes, starting small businesses, even protecting playgrounds, an airport, and the local cemetery from the disruptive, tunneling rodent.

“The Commerce Clause has long been a source of federal mischief, but the Supreme Court has never allowed it to be stretched this far,” Wood noted. “With their prairie dog regulation, federal bureaucrats have asserted control over local activities that are not interstate commerce, do not affect interstate commerce, and are not necessary to any federal regulation of interstate commerce.”

If the words of the Constitution are so malleable, it has no meaning and Congress is our dictator.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

13 comments on “Newspaper column: Constitution stretched to the breaking point

  1. A. D. Hopkins says:

    Tenth Circuit starting to act like the Ninth. A very bad precedent set here.

  2. Steve says:

    Remember this?

    “Shall” means “may” Patrick so gleefully put forth based on a sham plea in an attempt to do this very thing.
    (make words mean whatever he wants them to mean)

  3. deleted says:

    ” That means courts must ensure that the federal government operates only within its enumerated powers so the States can function within their proper spheres.”

    I assume Nevada’s “own” bastard signed on to this?

    I wonder which part of the Constitution gives courts the authority to dictate to other branches of government what they can and can’t do? And as a follow up, I wonder how, even if a court had the authority that plenty of conservatives claim in other instances they don’t have have, the court could hold another branch of the government to LESS authority than the Constitution specifically grants them (Congress has general power in addition to power that is specifically enumberated)

    Maybe this guy ought to, in the limited time he has left, spend Nevada’s tax dollars, focusing on Nevada’s issues, or maybe just once in a while?

    The clown.

  4. Marbury v. Madison

    “The judicial power in the United States extends to all cases under the Constitution and the Supreme Court is bound to decide cases according to the Constitution rather than the law when the two conflict. So if a law is found to be in conflict with the Constitution, then the law is invalid.”

  5. Anonymous says:

    I’ve heard of that case, i just didn’t know that conservatives were aware of it.

    I know that from time to time, conservatives have said that the Supreme Court isn’t the final arbiter of the Constitution so i get confused i guess.

  6. The question was: “I wonder which part of the Constitution gives courts the authority to dictate to other branches of government what they can and can’t do?”

  7. Rincon says:

    Like the Hippy Dippy Weatherman, who told people not to sweat the thunderstorms because the radar also spotted 4 Russian ICBM’s on their way, I wouldn’t worry about prairie dog laws destroying the Constitution. It will disappear into history when we declare bankruptcy.

  8. Steve says:

    With exception of only 2 times since 1776, the USA has run a national debt and the latest figure is not the highest it has ever been.

    The USA isn’t going into bankruptcy, despite all the hype you love so much, Rincon.

  9. Steve says:

    “There’s been a lot of attention in recent years over China rising to become one of the largest holders of U.S. debt. China’s share of the debt is sizable — about 7% — but it’s hardly the largest holder of U.S. government bonds.
    The top holder by far is U.S. citizens and American entities, such as state and local governments, pension funds, mutual funds, and the Federal Reserve. Together they own the vast majority — 67.5% — of the debt.
    Foreign nations only hold 32.5% of the total.”

    We have been over this before.

    I am remiss in my response to Rincon. I neglected to account for Rincon’s requirement for spoon feeding. For this deficiency, I sentence myself to 50 lashes with a wet noodle.

  10. Rincon says:

    You win. No point in getting sucked into a nondiscussion.

  11. Steve says:

    And here I thought you would be happy to know WE, all of us, OWN our country…..

    Silly me.

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