Fortuitous Spleens and Hapless Toads

Today, while upholding the Affordable Care Act on other grounds, the Supreme Court found that the Commerce Clause was not broad enough to sustain the Act's individual mandate.  While there is reason to distinguish the opinion in the Affordable Care Act case with most other enactments by Congress, today's ruling--like a number of other cases from the past decade--raises some question marks about whether some applications of federal environmental law are constitutional under Congress's Commerce Clause power.

As I sat reading the opinion this morning, I kept thinking back to a famous dissent the Chief Judge penned before he was elevated to the High Court. Specifically, not too long after he became a judge on the D.C. Circuit, that court was asked to rehear a case en banc in which a three-judge panel had earlier ruled to uphold the Fish and Wildlife Service's decision to protect arroyo toads under the Endangered Species Act.  The majority of judges on the D.C. Circuit voted not to rehear the case, triggering the Robert's dissent. Displaying both humor and hostility toward the Service's application of the Endangered Species Act, Roberts wrote:

"The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'Commerce ... among the several States.'"

While today's news is that Roberts voted to uphold the Affordable Care Act, his opinion also might serve as a warning shot of things to come.  If that shot hits, toads and a wide range of other things in our natural environment might sit haplessly by as the Court employs some of the logic in today's opinion to strip away the reach of federal environmental laws.

-- Brigham Daniels