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Federal Judge: No, Congress Can't Transform Prairie Dogs Into 'Commerce'

Anytime a judge tells the federal government that it lacks the power to do something, it's newsworthy. And it happened on Wednesday, in a quirky case involving prairie dogs.
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Anytime a judge tells the federal government that it lacks the power to do something, it's newsworthy. And it happened on Wednesday, in a quirky case involving prairie dogs.

In a decision that displays all the hallmarks of judicial engagement, a Utah district court held that Congress could not prevent Utah residents from protecting their private property, public parks, cemeteries and airports from the Utah prairie dog. The decision marked the first time that a federal court has struck down federal regulation of a species under the Endangered Species Act.

For decades, the federal government has used the Endangered Species Act to protect the Utah prairie dog. As cute as they are, prairie dogs can decimate public parks and private land, sink gravestones and burrow into caskets, and even collapse runways. But federal law tightly circumscribes peoples' ability to undertake any activity that would injure or kill a Utah prairie dog or significantly injure its habitat, even on non-federal lands. Property owners in southwestern Utah brought suit.

The Constitution created a federal government of enumerated, and therefore limited, powers. The only powers that Congress can exercise are those set forth in Article I, Section 8--they include the power to tax, the power to declare war and the power to punish piracy, among other powers. Which provision, if any, enables Congress to regulate prairie dog takings on non-federal lands? According to the government, it's the Commerce Clause, which empowers Congress to regulate interstate commerce.

Utah prairie dogs exist only in Utah and are neither bought nor sold on any market. But the Feds gamely tried to make the connection by arguing that prairie dogs encourage tourism and are of great biological value to the ecosystem.

It sounds silly because it is. Unfortunately, the Supreme Court and lower courts have a long history of rubber-stamping congressional assertions of power based on similarly fanciful assertions of "interstate commerce." In Gonzalez v. Raich (2005), for example, the Court held that Congress could regulate the purely local growth and consumption of marijuana because those activities might have an impact on the national market for marijuana.

More recently, the 11th Circuit Court of Appeals held that the Commerce Clause empowered the U.S. Department of Agriculture to spend two years investigating the Hemingway Home & Museum in Key West, Florida. The reason? The museum is home to descendants of Hemingway's famous six-toed cat, Snowball, and a disgruntled former employee gave the Feds a tip that these cats were sleeping outside. The supposed connection to interstate commerce? The museum sells cat-themed merchandise in its gift-shop and the cats were featured on the museum's website. So much for James Madison's assurances that the powers of the federal government would be "few and defined."

But Judge Benson drew the line at prairie dogs. He made a genuine effort to determine the constitutionality of the government's actions, looking carefully at the facts and rejecting the government's customary call for blind deference. Judge Benson refused to accept at face value the government's baseless assertion that tourism would be affected by prairie dog takings on non-federal land, noting that all of the websites cited by the government as evidence of the prairie dogs' supposed connection to tourism referred to the animals' presence in national parks and forests--not private property. He also rejected the government's argument that, owing to the Utah prairie dog's "biological value" to the ecosystem, prairie dog takings may have effect on interstate commerce, declining to indulge in factually baseless, government-favoring speculation.

Because lower courts are bound to follow Supreme Court precedent, they are limited in what they can do in cases implicating the many parts of the Constitution that the Court has effectively deleted over the years. But where the Court has left room for genuine judicial engagement, it is encouraging to see judges striving to perform their truth-seeking function, as Judge Benson did here. Hopefully, the 10th Circuit Court of Appeals will agree that Congress cannot transform rodents into instruments of interstate commerce, to the detriment of the constitutional rights of human beings.