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IF GENDER-BASED HARASSMENT IS BEYOND
CONGRESS’ INTERSTATE COMMERCE POWER,
THEN WHAT ABOUT HARASSING WOLVES?
Washington, DC, November 18, 2000-- The Supreme Court will be asked next week to decide the constitutionality of a federal endangered species program. CEI, assisted by the law firm Gibson, Dunn & Crutcher LLP, will file a certiorari petition seeking high court review of the Fourth Circuit’s recent decision  that the federal government has authority, under the Commerce Clause, to prohibit killing or trapping wild red wolves on private property.
The notion that Congress has limited powers is often heard but only rarely practiced. That, at least, is the way it seemed for most of the 20th century. But in 1995 the Supreme Court revived a basic constitutional limit on federal power when it struck down a federal ban on guns in the vicinity of schools (United States v. Lopez, 514 U.S. 549) . In the Court’s view, the Commerce Clause forbids Congress from acting as a national policeman whose beat covers every street in America. Last May the Supreme Court continued its revival of Commerce Clause limits in United States v. Morrison, 120 S. Ct. 1740 , ruling that the federal Violence Against Women Act was an unconstitutional attempt to federally regulate issues of local crime. If gender-based violence is interstate commerce, the Court reasoned, then so is just about everything else.
Gibbs v. Babbit, 214 F.3d 483 (4th Cir., June 6, 2000) raises the question of how these rulings will apply to a growing body of environmental regulations, especially in the area of endangered species. At issue is an Endangered Species Act rule concerning red wolves, a species re-introduced to North Carolina by the Fish and Wildlife Service. Under this rule, a landowner whose family, pets or livestock are threatened by these wolves cannot remove them from his private land except under extremely stringent conditions. In a split decision, a 4th Circuit panel upheld the rule via an incredibly expansive view of its alleged economic impact. The majority reasoned that, for example, wolf researchers might cross state lines to study these wolves, tourists might come from afar to hear them howl, and someday there might even be a wide-ranging trade in wolf pelts. In a vigorous dissent, Judge Luttig argued that the majority’s reasoning would consign the Supreme Court’s Lopez and Morrison decisions “to aberration.”
On behalf of several North Carolina counties and residents, we will argue that biodiversity per se cannot be turned into an escape hatch from the limitations of the Commerce Clause. Will the Court accept the case? Stay tuned.
For more information, contact Sam Kazman, CEI General Counsel, at 202-331-1010 or Mark Perry, of Gibson Dunn, at 202-955-8500, or check the CEI website, For articles by CEI’s Michael Greve  on the principles of federalism, click here .