This column first appeared Jan. 24 on Library of Law and Liberty.

In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.

Now that understanding may be upended by a tiny, blind arachnid known as the “Bone Cave harvestman” (scientific name: Texella reyesi). This cave-dwelling invertebrate, which resembles a spider, has been included by the U.S. Fish and Wildlife Service on the Endangered Species list since 1988. Pursuant to the Endangered Species Act and its enabling regulations, the “habitats” of endangered species cannot be modified or “degraded” without a federal permit.

The problem is, the Bone Cave harvestman is known to exist only in central Texas—only in Williamson and Travis Counties, to be exact.

John Yearwood, a third generation ranch owner whose 865-acre spread north of Austin has been in his family since 1871, is suing to remove the insect from protected status. State surveyors discovered Texella reyesi living underground on Yearwood’s property more than a decade ago when considering a road expansion project adjacent to his ranch. As a result, Yearwood, a 71-year old Vietnam vet, has been forbidden to alter his property or “harass” the insect with noise, light, or activity. Landowners who knowingly harm an endangered species or its habitat can face up to $50,000 in fines and up to a year in prison. The insect’s “habitat” is the limestone caves and crevices that are ubiquitous in central Texas. Due to the Endangered Species Act, Yearwood is being held hostage by a tiny subterranean insect that hardly anyone has ever seen or heard of.  (The facts are reported here and here.)

Yearwood’s beef is two-fold. First, the use and enjoyment of his privately owned land have been significantly curtailed, even though he is solely responsible for maintaining and paying taxes on the property. Federal law, he says, requires him to provide a preserve for the insect—for the benefit of “everyone in America”—at his own expense. “I pay taxes on the land every year. And there’s no way I can sell it—nobody will buy it.” Incredibly, development within 35 feet of a known Texella reyesi dwelling requires $400,000 an acre in mitigation permits!

The rancher’s second objection is the one that could transform constitutional law. He argues that because the insect is so far known to live only one state, it does not—unlike, say, growing wheat—“exert a substantial effect on interstate commerce.” Because Congress passed the Endangered Species Act in 1973 pursuant to its Commerce Clause powers, Yearwood’s lawyers contend that the lack of an interstate nexus for a wholly intrastate listing renders the regulation unlawful.

The Texas Public Policy Foundation, a conservative think tank based in Austin, is representing Yearwood. The foundation maintains that Article I, Section 8 of the Constitution, which grants Congress the authority to “regulate commerce between the states,” does not extend to the Bone Cave harvestman (or BCH).

The foundation distinguishes the regulation of endangered insects from the cultivation of wheat (or, pursuant to the 2005 Gonzales v. Raich decision, of home-grown medicinal marijuana):

The BCH lives solely in isolated caves in central Texas. It is not bought or traded in interstate commerce, and has no substantial effect on interstate commerce. Likewise, BCH spiders are not a fungible good, the regulation of which is necessary to regulate an interstate market. Accordingly, neither the Commerce Clause, nor the Necessary and Proper Clause grant Congress the authority to regulate BCH takes.

Property owners have been skirmishing with the federal government over Endangered Species Act designations for many years. In late 2014, for example, a federal court ruled that a Utah prairie dog was improperly listed as an endangered species because it lives in only one state.

Others facing similar restrictions in other states have been trying to replicate the Utah ruling, which is on appeal to the Tenth Circuit. What makes Yearwood’s lawsuit—now pending in federal district court in Austin—unique is that Texas Attorney General Ken Paxton has weighed in on behalf of the property owners. Last month, Paxton filed an amicus curiae brief that is remarkable for its fidelity to the principles of federalism and limited government.

A first-term Republican who has made a name for himself by obtaining nationwide injunctions against several controversial Obama administration initiatives (for example here, here, and here), Paxton pulled no punches in this brief:

Texas appears as amicus curiae to preserve the constitutional limits that prevent the federal government from regulating purely intrastate, noneconomic activity. Texas is impacted by Defendants’ interference in a local matter that is “clearly without [the federal government’s] powers.” Alexander Hamilton, Opinion on the Constitutionality of a National Bank(Feb. 23, 1791), reprinted in Hamilton: Writings 621 (Joanne B. Freeman ed., 2001). Texas files this amicus brief to contest a clear overreach in the use of federal power, because every citizen suffers harm when the federal government acts outside its constitutional authority.

Paxton argues that GDF Realty Investment, Ltd. v. Norton, a 2003 Fifth Circuit decision[1] upholding the designation of the Bone Cave harvestman under a broad reading of the Necessary and Proper Clause[2], has been superseded by two decisions of the Supreme Court: Gonzales v. Raich (2005) and NFIB v. Sebelius (2012). (The latter upheld Obamacare, but not on Commerce Clause grounds.) He maintains that in Raich, the Supreme Court adopted a narrower interpretation of the Necessary and Proper Clause, requiring a “clear and direct connection between the regulation of the intrastate activity and a valid regulation of interstate commerce.”[3] Applying the more rigorous test, Sebelius found Obamacare’s individual mandate wanting under the Commerce Clause.[4]

Accordingly, Paxton asserts that GDF Realty is no longer good law, and that under the prevailing standard, designation of the “Bone Cave harvestman” as an endangered species under federal law is unconstitutional. “Raich and Sebelius,” he writes, “now make it apparent that the BCH rules are not a constitutionally necessary means to a larger regulation of interstate commerce.”[5]

Throughout his brief, Paxton cites the views of the Framers, the Federalist Papers, and Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819). It is a tour de force of originalist reasoning.

Paxton has stated publicly that

Under the Constitution, the federal government can only act when there is a direct logical connection between the subject being regulated and interstate commerce. A spider that only exists underground in two Texas counties and is neither a bought nor sold commodity fails that test by definition. For such localized species, it is the state and county, not the federal government, which can best address conservation.” (Emphasis added.)

If this view prevails in John Yearwood’s lawsuit, or on appeal, the scope of the Endangered Species Act will have shrunk significantly—and with it the legitimacy of federal meddling in many other areas pursuant to a limitless reading of the Commerce Clause.

All because of an obscure bug living under a rock in central Texas.

 

[1] GDF Realty Investment, Ltd. v. Norton, 326 F.3d 622 (5th Circuit, 2003). Anticipating the doctrinal developments in Raichand Sebelius, the stalwart Judge Edith Jones dissented from the Fifth Circuit’s denial of rehearing en banc. 362 F.3d 286 (5th Circuit, 2004).

[2] U.S. Constitution, Article I, Section 8, Clause 18.

[3] Amicus brief at p. 7.

[4] Ibid., p. 8.

[5] Ibid., p. 10.

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