A Federal Crime Against Nature? The Federal Government Cannot Prohibit Harm to All Endangered Species Under the Necessary and Proper Clause

Abstract

Since McCulloch v. Maryland, the Necessary and Proper Clause has given Congress wide latitude in its choice of means to accomplish its legitimate ends. But these ends have always been constrained to the other enumerated powers. Therefore, Gonzales v. Raich’s recognition that the federal government may regulate activity otherwise beyond the Commerce Clause if necessary to effectuate a comprehensive regulatory scheme is narrower than many have suggested. Under Raich, the challenged regulation must be necessary to avoid frustrating a comprehensive scheme’s ability to function as a regulation of commerce. This means that the government cannot rely on Raich to justify regulation of noneconomic activities unless necessary to avoid frustrating the government’s ability to regulate economic activity or the market for a commodity. Though Congress can pursue many public policy goals while exercising its power under the Commerce Clause, it cannot rely on these other legislative “ends” and the Necessary and Proper Clause to expand beyond it.This limit forecloses reliance on the Necessary and Proper Clause to sustain the federal government’s prohibition against the take of all species listed under the Endangered Species Act. The Endangered Species Act is not a scheme to comprehensively regulate economic activity or the market for a commodity, but an environmental regulation to preserve species and biodiversity. Yet, it broadly forbids any activity, including noneconomic activity, that has a negative effect on endangered species or their habitats. The Necessary and Proper Clause does not sanction this broad regulation of noneconomic activity because much of it — particularly the regulation of noneconomic activity that harms species with no appreciable tie to commerce — is wholly unnecessary to the regulation of economic activity or the market for any commodity.