Does the Commerce Clause Reach a Red Wolf That Never Leaves the County

Picture a wolf. It was born in one county in eastern North Carolina, it will live and die in that county, and it has never been bought, sold, shipped, stuffed or sold at auction. It does not cross state lines. It does not cross the road if it can help it. Now ask the question that a surprising number of federal judges have had to answer with a straight face: is that wolf "commerce among the several States"?

If your answer is that this sounds like a joke, you have reached the same conclusion that the Constitution's drafters would have. Yet the legal machinery that protects the red wolf, and a good many other creatures that spend their whole lives inside one state, depends on exactly that proposition. This post is about how courts have defended it, where they have split, and why the dispute matters to any family that owns land.

Defining the terms

The Commerce Clause is Article I, Section 8, Clause 3, which gives Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Enumerated powers are the powers the Constitution lists for Congress. The Tenth Amendment says that powers not delegated to the United States are reserved to the states or to the people. The point of listing powers is that what is not listed is not given.

The Endangered Species Act (ESA), passed in 1973, protects species listed as endangered or threatened. Its Section 9 makes it unlawful to "take" a listed animal, and the statute defines take to include to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect.

The question is this: when the animal in question lives wholly inside one state and has no commercial value, what power in Article I lets Congress forbid a landowner from taking it?

The Court sets the stage: Lopez and Morrison

After 1937 the Supreme Court read the Commerce power broadly. In 1942, Wickard v. Filburn had held that a farmer growing wheat for his own use could be regulated, because wheat grown for home use competes with wheat in commerce and, taken together with the wheat of many similar farmers, has a substantial economic effect on interstate commerce. The doctrine of aggregation was born, and it looked like the clause had no limit.

Then came United States v. Lopez in 1995. A twelfth-grade student had brought a gun to a Texas high school, and the Gun-Free School Zones Act made that a federal crime. By a vote of five to four, with Chief Justice Rehnquist writing, the Court held that Congress had exceeded its power. The opinion sorted the Commerce power into three categories: the channels of interstate commerce, the instrumentalities of interstate commerce and persons or things in commerce, and activities that substantially affect interstate commerce. The gun law fell into the third category and failed it, because possessing a gun near a school was not economic activity, and the connection to interstate commerce could be reached only by piling inference on inference. If Congress could regulate that, the Court asked, what could it not regulate? United States v. Lopez Was the First Commerce Clause Limit Since the New Deal tells that story in full.

Five years later, in United States v. Morrison (2000), the Court struck down the civil remedy in the Violence Against Women Act on the same ground: the conduct was not economic, and Congress's findings about the aggregate cost of such crimes could not stretch the clause to cover it. The Court said again that the Constitution requires a distinction between what is truly national and what is truly local.

The two cases did not overrule Wickard. They drew a line around it. Regulation of economic activity, where the aggregate effect on commerce is real, remained within reach. Regulation of non-economic activity, justified only by a long chain of effects, did not.

The red wolf is a test of where that line sits.

Gibbs v. Babbitt: the wolf case

The red wolf is a native of the American Southeast that was driven nearly to extinction in the twentieth century. It was listed for protection in 1967, and in 1987 the Fish and Wildlife Service began releasing captive-bred wolves at the Alligator River National Wildlife Refuge in eastern North Carolina. The program put a predator onto and around farmland.

Landowners in the area challenged the federal rule that forbade them from taking a red wolf on or near their own property. Their claim was a Commerce Clause claim: Congress had no power to forbid the taking of an animal that was not an article of commerce and lived in a single state.

In Gibbs v. Babbitt, decided in 2000, the Fourth Circuit, in a divided opinion, upheld the regulation. The majority did not claim that the wolf itself was a commodity. It reasoned that the taking of red wolves, in the aggregate, substantially affects interstate commerce: without red wolves there would be no red wolf tourism, no scientific research and no commercial trade in pelts. The majority treated the ban as part of a comprehensive program that the aggregate effect justified.

Judge Luttig dissented, and his dissent is the best statement of the other side. As one summary describes it, he objected that killing even all of the red wolves in North Carolina would not be the kind of economic activity that Lopez and Morrison treat as central to the Commerce power. Here is the problem in plain terms. If an animal's mere existence, by attracting tourists or scientists, makes taking it a regulable activity, then little is left that is not. Tourists and researchers can be found around mountains, rivers, historic houses and your neighbor's oak tree. The killing of a wolf is not a sale of anything, and it takes some imagination, which federal briefs are never short of, to turn it into one.

GDF Realty v. Norton: the cave bugs

The next major case came from Texas. In GDF Realty Investments v. Norton, decided in 2003, a developer wanted to build on land in Travis County, Texas, where there were caves inhabited by several species of tiny invertebrates, the so-called cave bugs, which were listed as endangered. The case concerned six species of subterranean invertebrates found only within two Texas counties. They were not bought or sold, and their only contact with commerce was that the land above them was wanted for a commercial development.

The Fifth Circuit upheld the application of the ESA, affirming on different grounds than the district court. It treated the regulated activity as the taking of the cave species rather than the developer's building plans, and it then held that such takings, in the aggregate, substantially affect interstate commerce, citing Lopez and Morrison. Other courts had framed the regulated activity as the development itself, which is part of why the question stays open.

Other circuits reached similar results on similar facts. In the D.C. Circuit, a challenge to protection of the Delhi Sands flower-loving fly, an insect found in a small part of California, failed in National Association of Home Builders v. Babbitt (1997), on the ground, as one summary puts it, that protecting the fly bears on biodiversity and therefore on national economic interests. The pattern in the circuits was that the ESA survived, whether the court aggregated the taking of the species or pointed to the development the regulation touched.

The strongest answer: Gonzales v. Raich

The best defense of the government's position comes from the Supreme Court itself. In Gonzales v. Raich (2005), two California women who used marijuana for medical reasons under state law, one growing her own plants and the other receiving it free from caregivers, argued that Congress could not reach them, because the marijuana never entered commerce at all. The Court, six to three, disagreed. It said Congress may regulate purely local activities that are part of an economic class of activities having a substantial effect on interstate commerce, and that Congress had a rational basis for believing that leaving home-grown marijuana outside the Controlled Substances Act would undercut the whole regulatory scheme for the interstate drug market.

Justice Stevens wrote for the majority, and the case rested on Wickard: a regulated commodity, a comprehensive scheme, and the real possibility that local activity would leak into the national market. Justice Scalia concurred only in the judgment, resting on the Necessary and Proper Clause, the idea that Congress may regulate intrastate activities when that is necessary to make a larger regulation of interstate commerce effective. Justice Thomas dissented, writing that the majority's reasoning left no principled stopping point for federal power. Justices O'Connor and Rehnquist also dissented. The coalition that had given the Court the Lopez line showed how fragile it was.

That is the strongest card for the government. If Congress can reach homegrown medical marijuana, the argument runs, it can certainly reach the taking of an animal protected by a comprehensive federal program. Gonzales v. Raich and the Marijuana Case That Split Conservative Justices tells the case and how it split the conservative legal movement.

The best argument for the Endangered Species Act, stated fairly

A fair defender of the statute would argue as follows.

1. Species are an interconnected resource. The extinction of any species is irreversible, and the loss of biodiversity affects agriculture, medicine and the ecosystems that support commerce in ways that cross state lines.
2. Wildlife migrates and markets form. Even a species that lives in one state now may have been, or may be, in another. The ESA addresses a national problem, and a patchwork of state rules would invite a race to the bottom, with some states permitting what their neighbors forbid.
3. Comprehensive schemes get deference. After Raich, a rule that is an essential part of a broader national regulatory scheme is permitted to reach local activity.
4. The Court has not struck down the ESA. The Supreme Court has repeatedly applied the statute, and lower courts have upheld it, so the position is settled law.

Those are respectable arguments. They also prove why the enumerated powers matter.

The reply: a power with no limit is not an enumerated power

One: the aggregation theory has no stopping point. If a creature's value to scientists and tourists makes taking it a matter of commerce, then every object of interest to anyone is within the clause. The Founders wrote a list. A power that expands to cover whatever Congress finds useful is not a listed power; it is a general police power, which the Constitution withholds from the national government and leaves to the states. Federalist No. 45 says the powers delegated to the federal government are few and defined, and those that remain with the states are numerous and indefinite. A rule that reaches a wolf that never leaves the county does not look much like a few and defined power.

Two: the original meaning of commerce was trade. In the Founders' usage, commerce was the buying, selling and transport of goods, not everything that might remotely affect trade. The history is told in What Commerce Among the Several States Meant to the Men Who Wrote It. A wolf is not trade, and the killing of a wolf is not trade, and a statute that reaches it has to find another source of power.

Three: Lopez and Morrison asked for an economic activity, and the red wolf case strains that test. A farmer protecting his animals from a wolf is not engaged in a sale of anything, and the only link to commerce is the creature's general importance, which is the kind of long chain of inference those cases refused to accept.

Four: Raich is about a regulated market, and the wolf has none. There was a national market in marijuana that the Controlled Substances Act was aimed at, and the Court said local growing could feed it. No one imagines a back-door market in wild red wolves that a killing in one county would feed. Justice Scalia's concurrence supports the reach only where the regulation of the local activity is essential to a valid regulation of the interstate one, a standard a wolf ban does not obviously meet.

Five: the answer lies in federalism, not in indifference. A conservative does not have to argue that wolves are worthless or that species should go extinct. Protecting wildlife is a legitimate goal, and a state may pursue it, as may a landowner and a conservation group. The Constitution gives the states broad police powers to protect animals within their borders. Federal power, by contrast, rests on the list. The sensible policy outcome is state and private conservation, with federal power where the animal or the harm actually crosses a line.

What the fights show landowners

For a family that owns land, the lesson is practical.

• The listing of a species can change what you may do on your land, because Section 9 reaches private property and the definition of take is broad.
• Courts have given the statute a wide reach. The Fourth, Fifth and D.C. Circuits have each upheld its application, by different routes, so a landowner should not assume a Commerce Clause defense will succeed.
• Cooperation has been better than confrontation in many cases. Federal programs have at times offered safe-harbor agreements and permits that give landowners assurances in exchange for habitat work. The incentives matter: an owner who fears that a listed species on the land will cost him the use of it has a reason to make sure the species does not settle there, a perverse result explored in Why the Endangered Species Act Punishes the Landowner Who Helps a Bird. Check the current rules with the Fish and Wildlife Service and with a lawyer who handles these matters in your state.
• The politics of the ESA includes real stories of loss, like those in The Spotted Owl Listing Emptied Timber Towns and Still Did Not Save the Owl, and also real stories of recovery, which advocates on both sides cite.

None of that is advice about any particular property. The point is that the constitutional question, which can sound like a seminar topic, decides whether a federal agency or a state legislature gets to set the terms.

The Founders' view

The Founders divided power on purpose. Madison wrote in Federalist No. 45 that the powers reserved to the states would extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people. A wolf in a North Carolina county is such an object. The case for federal control has to be made by showing that the Constitution gave the power to Congress, and that case has been made by courts largely through a chain of reasoning that ends at the Commerce Clause and does not say where it stops.

This is the kind of question where conservatives should be both principled and humble. The principle is that powers are enumerated. The humility is the recognition that precedent exists, that Raich is on the books, and that reform is more likely to come from careful cases and from Congress itself, through clearer statutes and state-led conservation, than from a single dramatic ruling. An argument for limits is an argument about the structure of the Constitution, not about whether wolves are good. The structure is what protects the family with the farm.

The case in brief

1. The Endangered Species Act's reach over animals that live in one state and are never sold depends on a broad reading of the Commerce Clause, and the courts have mostly upheld it.
2. Gibbs v. Babbitt (4th Cir. 2000) upheld the red wolf rule by aggregation, over Judge Luttig's dissent, and GDF Realty v. Norton (5th Cir. 2003) upheld protection of Texas cave invertebrates by aggregating the effect of taking them.
3. Lopez (1995) and Morrison (2000) require that the regulated activity be economic, and the red wolf cases strain that requirement.
4. Gonzales v. Raich (2005) is the strongest answer for the government, but it rested on a regulated national market that wild wolves do not have.
5. Enumerated powers matter because a power with no stopping point is a police power, and protecting wildlife is a job the Constitution leaves open to states, landowners and private conservation.

What you can do: read the Commerce Clause and the Tenth Amendment in the Constitution, then check which federally listed species are in your county and what your state's wildlife agency says about landowner agreements.