Marmot-like critters excluded from ambit of the Commerce Clause

Though I wasn’t a huge fan of the practice, I still love the law – mainly because of stuff like this. From HuffPo

Utah prairie dogs exist only in Utah and are neither bought nor sold on any market. But the Feds gamely tried to make the connection by arguing that prairie dogs encourage tourism and are of great biological value to the ecosystem.

It sounds silly because it is. Unfortunately, the Supreme Court and lower courts have a long history of rubber-stamping congressional assertions of power based on similarly fanciful assertions of “interstate commerce.” In Gonzalez v. Raich (2005), for example, the Court held that Congress could regulate the purely local growth and consumption of marijuana because those activities might have an impact on the national market for marijuana.

More recently, the 11th Circuit Court of Appeals held that the Commerce Clause empowered the U.S. Department of Agriculture to spend two years investigating the Hemingway Home & Museum in Key West, Florida. The reason? The museum is home to descendants of Hemingway’s famous six-toed cat, Snowball, and a disgruntled former employee gave the Feds a tip that these cats were sleeping outside. The supposed connection to interstate commerce? The museum sells cat-themed merchandise in its gift-shop and the cats were featured on the museum’s website. So much for James Madison’s assurances that the powers of the federal government would be “few and defined.” [Ed. – emphasis mine.]

But Judge Benson drew the line at prairie dogs. He made a genuine effort to determine the constitutionality of the government’s actions, looking carefully at the facts and rejecting the government’s customary call for blind deference. Judge Benson refused to accept at face value the government’s baseless assertion that tourism would be affected by prairie dog takings on non-federal land, noting that all of the websites cited by the government as evidence of the prairie dogs’ supposed connection to tourism referred to the animals’ presence in national parks and forests–not private property. He also rejected the government’s argument that, owing to the Utah prairie dog’s “biological value” to the ecosystem, prairie dog takings may have effect on interstate commerce, declining to indulge in factually baseless, government-favoring speculation.

Unfortunately, on that definition, Doug the Smart Contract Marmot is probably not entitled to seek and obtain state protection from predatory Utahans with guns (am working on the appropriate legal filings as we speak).

As a member of both the cuddly animal lobby and a libertarian, I’m deeply conflicted.

Either way, it’s nice to see a court limiting Federal power for once.

prairiedog

Not welcome in Utah

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