Friday, March 16, 2012

Endangered Species Act also at risk along with Obamacare tomorrow

Obamacare undergoes Supreme Court scrutiny tomorrow, and we'll hear in a few weeks/months as to what the Court does.  The challenge is whether Congressional ability to regulate interstate commerce allows the government to require people to buy health insurance, paying a penalty if they refuse to do so.

Wading through the mumbo jumbo, I think we ultimately have two choices.  One is that except in the most strained and patchworked circumstances, Constitution places almost no restraint on the ability of the federal government to act like a state government in terms of economic regulation.  Politics, not courts, restrain the scope of federal government.  This is the choice that courts have made since the 1930s.

The other choice is that except in strained and patchworked ways, the Constitution doesn't allow the federal government to operate like a modern integrated nation-state in terms of economic regulation.  The government could figure out weird work-arounds involving tax incentives in some cases, but otherwise we'll just have to hope that government is the problem and not the solution, because we're not going to let it operate as a solution.

These are the ultimate choices, and a decision to partially overturn Obamacare doesn't send us all the way to the second choice.  It does start us down the road though, with consequences to follow.

Next in line could be the Endangered Species Act, which has been challenged often and unsuccessfully for involving non-economic, intrastate activity.  It's the nature of species dwindling enough to be eligible for listing as endangered that also makes them less important economically, and they rarely locate their last habitats on the border between states instead of inside a single state.  Lower courts haven't worried about this though, based on Supreme Court precedent since the 1930s.

The Supreme Court never reviewed this particular challenge though, and Chief Justice Roberts, back when he was a wee appellate judge, signaled his own concern with the ESA.  If the Supreme Court changes how we understand the Commerce Clause, things can change for environmental regulation.

A lot is dependent on what the Court decides over Obamacare, and on who gets to make the replacement appointments between now and January 2017.