Is the Endangered Species Act constitutional? The D.C. Circuit considered that question in National Association of Home Builders v. Babbitt in 1997. More specifically, the case considered whether the congressional power to regulate interstate commerce authorized the ESA's prohibition upon building a large regional hospital in the habitat of an endangered fly that lives only in a small area of southern California. The three judges on the D.C. Circuit approached the question from three different perspectives: the relationship between biodiversity as a whole and interstate commerce, the relationship between the fly and interstate commerce, and the relationship between the hospital and interstate commerce. In this article, I argue that the constitutionality of such an application of the ESA depends upon three unanswered questions. First, I consider which effects can be aggregated for purposes of determining their effect upon interstate commerce, concluding that there must be some limit upon such aggregations. Second, I examine the potential effects that an activity may have upon interstate commerce, suggesting that Congress must provide a reasonable basis for believing that a particular resource will contribute to interstate commerce one day. And third, I consider which activities must be related to interstate commerce, arguing that the requisite effect can be judged based upon the activity that impacts an endangered species.
Available at: http://works.bepress.com/john_nagle/4/