A Forthcoming Petition For Certiorari

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 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 20^th century.  But in 1995 the Supreme Court revived a basic constitutional limit on federal power when . 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 , 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. 

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 4^th 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.”