Taking the Necessary and Proper Clause Seriously; Why Raich Cannot Sustain the Endangered Species Act's Take Prohibition

Abstract

This article argues that, contrary to decisions from five circuits and commentary from the legal academy, the U.S. Supreme Court’s decision in Gonzales v. Raich does not provide a means to uphold the Endangered Species Act as constitutional under the Commerce or Necessary and Proper Clauses. The Act cannot be upheld under the Commerce Clause without reversing United States v. Lopez and United States v. Morrison because the statute regulates non-economic activities and would require an approach to aggregation and reliance on attenuated effects that would undermine the limits articulated in these cases. Similarly, the Act cannot be upheld under the Necessary and Proper Clause standard discussed in Raich without converting the comprehensive regulatory scheme doctrine into a general police power. Precedent and first principles support a more narrow interpretation of the Raich doctrine than the circuit courts and commentators have assumed – Congress may only regulate activities otherwise beyond its Commerce Clause power if necessary to render a comprehensive regulatory scheme effective as a regulation of commerce. Although Congress may pursue non-commerce ends when exercising its Commerce Clause power, it cannot pursue these ends through means beyond the Commerce Clause. Otherwise Congress would be exercising the police power intentionally denied to it.