After Morrison, Can Congress Preserve Environmental Laws From Commerce Clause Challenge?

Charles Tiefer

The author is Associate Professor, University of Baltimore Law School; B.A., summa cum laude, Columbia College, 1974; J.D., magna cum laude, Harvard Law School, 1977. Professor Tiefer would like to thank Jennifer Ferragut for her research assistance, and the skilled staff of Emily R. Greenberg for their library/computer assistance.

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Environmental laws seem to face, in the Rehnquist Court, a situation like that old silent movie serial "The Perils of Pauline." Environmental laws hardly ever seem to have even a single U.S. Supreme Court Term's respite from mortal danger, between Article III standing attacks on the citizen suit provisions, Takings Clause attacks on land use restrictions,¹ federalism or sovereign immunity attacks on provisions for government liability or restriction, and nondelegation doctrine attacks on regulatory provisions²—yet, with all this, the Court has not yet struck such laws a lethal blow.

Now, the Court's bombshell last spring in United States v. Morrison,³ building on the 1995 doctrinal turnaround in United States v. Lopez,⁴ threatens the environmental laws from yet another direction: the U.S. Commerce Clause.⁵ The problem arises not so much from the narrow holding of either case, since neither case involved environmental laws: Morrison struck down the Violence Against Women Act (VAWA), and Lopez struck down a drugs-near-schools provision, neither even remotely resembling an environmental law.

Rather, the problem arises on two fronts, leading to this Dialogue's two parts. First, the methodology of Morrison seems to arm the Court to strike down those environmental laws, like the Endangered Species Act (ESA),⁶ for which the connection to interstate commerce involves problematic chains of inference for which congressional findings are no longer a magical panacea. Second, looking further into the cloudy crystal ball of federal policymaking, the Court's doctrinal turn suggests limit-drawing for future national environmental law whenever, again, its connection to interstate commerce involves problematic chains of inference. Apart from the National Law Journal's report, "What's Left After Morrison,"⁷ there has not been much discussion in writing about how the Court's new Commerce Clause decision affects the next decade's legislative agenda.

The aspect of Morrison that warrants closest analysis consists of the Court's apparent disdain for congressional findings as a constitutional grounding for its legislating, and, specifically, findings that aggregate effects on interstate commerce as such a grounding. As two fine post-Lopez academic studies of congressional findings retrace, both the New Deal of the 1930s, and the civil rights laws of the 1960s, depended upon the Court deferring to congressional findings about the connection between local activity and interstate commerce.⁸ Morrison appeared to reduce, if not end, such deference. If so, key environmental laws currently justified by congressional findings—particularly the ESA—seem imperiled. Second, potentially, Congress' ability in upcoming years to enact new environmental laws, e.g., to enact laws dealing with land use sprawl, or global warming, seems radically constrained.

As Solicitor and Deputy General Counsel of the House of Representatives in 1984-1995,⁹ and since then (including twice this past year),¹⁰ I briefed in the Court and many federal courts the defense of a host of challenged Acts of Congress; and, I have been writing about environmental law [30 ELR 10889] constitutional¹¹ and nonconstitutional¹² issues for some time now. To me there seems adequate room, notwithstanding Morrison's, for congressional findings to preserve the environmental laws from Commerce Clause challenge.

The first part of this Dialogue looks specifically at the Commerce Clause challenge to the ESA after Morrison. Congressional findings played a vital part in the upholding of the ESA in recent rulings on Commerce Clause challenges in both the Fourth and D.C. Circuits. There is still a way of viewing such findings as fully effective after Morrison. It consists of viewing congressional findings as something other than quantitative "aggregation" of the effects of local activity. Congressional findings do not consist, in this context, just of Congress performing the addition and multiplication of countless local activities each affecting interstate commerce minutely. Rather, congressional findings about the significance of the elimination of species of obscure insects and plants express a qualitative judgment, in effect a probabilistic inferential judgment but made in a context where there cannot be "hard" accounting, about the impact, ultimately, on interstate commerce—and a judgment that differs from those that Morrison and Lopez ruled out for nationalizing matters of "traditional state regulation." Congressional findings about the aggregation of local activity could not save laws about drugs-near-schools or violence against women because such laws seemed to the Court to nationalize traditionally local issues, but congressional findings expressing the incalculable significance of biodiversity should save the ESA.

The second part of the Dialogue looks more speculatively at how Morrison shapes congressional environmental lawmaking for the next decade. Starting with the November 2000 election, and continuing in 2002 and 2004, a period is coming of more unpredictable and unstable legislative politics than at other recent times. Among the possibilities, enactment struggles in Congress could become the locus of a national discourse about expanding the federal government's role in environmental matters. I have previously written about how the Court's new federalism reshapes congressional activity in ways subtler than either flatly curtailing it or issuing it a carte blanche.¹³ So, it is worth some speculating about how Morrison may shape the next decade's environmental lawmaking debates, feeding some partisan polarization while also promoting compromise resort to cooperative federalism approaches. When this national discourse does generate new environmental laws, I would expect—but not guarantee—that the Court's rulings will defer to justificatory congressional findings.

Upholding the ESA

Congressionally enacted findings have vitally supported both the Fourth and D.C. Circuits in rulings upholding the ESA. In National Ass'n of Home Builders v. Babbitt,¹⁴ the D.C. Circuit upheld the ESA as applied to protect an obscure endangered insect species, the Delhi Sands Flower-Loving Fly, over a vigorous dissent by Judge Sentelle. As noted in an insightful piece by a supportive conservative academic, underlying the decision was how "Congress places a tremendous value on the protection of all endangered species,"¹⁵ reflected in the ESA's congressional findings.

Most recently, in June 2000, immediately after Morrison, the Fourth Circuit upheld the ESA as applied to the controversial project of reintroducing an endangered species of wolves in the face of state and local laws bluntly legalizing wolf-killing, a decision rendered over a vigorous dissent by Judge Luttig.¹⁶ The Fourth Circuit opinion, written by the conservative jurist Chief Judge J. Harvey Wilkinson IV, commences its analysis with how, when "Congress enacted the [ESA] 1973 . . . . Congress found that many of the species threatened with extinction are of 'esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.'"¹⁷

A challenger of the ESA would urge the reading of Chief Justice Rehnquist's opinion in Morrison as being so negative about congressional findings that it cuts off the support for even the conservative opinion writers and academics just cited. An ESA critic would contend Morrison shifts the new direction of Commerce Clause jurisprudence to the lines in the even-more-conservative dissenting opinions of Judges Sentelle and Luttig. Let us look closely at what Morrison did regarding congressional findings. Chief Justice Rehnquist discussed in Morrison how the VAWA "is supported by numerous [congressional] findings regarding the serious impact that gender-motivated violence has . . . ."¹⁸ However, the Chief Justice wrote that "the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation."¹⁹ As to the VAWA, "Congress' findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers."²⁰

The "unworkable" reasoning for the VAWA's Commerce Clause findings consisted of aggregation, for acts of violence against women, of their but-for causal connection with effects upon commerce. Those congressional VAWA findings concerned how gender-motivated violence, when their effects were added up, caused "diminishing national productivity, increasing . . . costs, and decreasing the supply of and the demand for interstate products."²¹ The Chief Justice responded that the VAWA's defenders' reasoning from [30 ELR 10890] these findings "seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the states' police power) to every attenuated effect upon interstate commerce."²² Chief Justice Rehnquist "rejected the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce."²³

A variety of lines of reasoning led to the Court's rejecting congressional findings that performed such aggregation. Primary was the "slippery slope" nature of the argument: "If accepted, petitioners' reasoning would allow Congress to regulate any crime," especially "murder or any other type of violence," as "long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption."²⁴ Another line of the Court's reasoning focused specifically on how that form of aggregation would let Congress nationalize traditionally local legal subjects: it would "completely obliterate the Constitution's distinction between national and local authority," and "be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant."²⁵

There is a way of viewing congressional findings, such as those for the ESA, as still effective as Commerce Clause justification after Morrison. It consists of viewing congressional findings not as crude addition or multiplication as a justification for nationalizing a traditionally local subject, because Morrison trounced that approach. So long as the Morrison majority on the Court holds together, that is not the route to success with the Court. Apparently, the Morrison Court views matters like violent crime, or family law, as part of what it refers to as "traditional state regulation." Those matters falling within "traditional state regulation" cannot readily become aggregated for Commerce Clause purposes just because Congress holds hearings, gathers the numbers, and does the addition and multiplication. But given the extraordinary changes in the world since the Constitutional Convention of 1787 drafted the Commerce Clause, quite a few subjects for legislation are not, as a matter of original intent, "traditional state regulation" for purposes of resisting congressional findings connecting with interstate commerce, and congressional findings have a different role than simply nationalizing the regulation of local activity by adding up its cumulative effects.

Rather, congressional findings can focus, not on adding up the effects of matters of "traditional state regulation," but on bridging the assertedly speculative nature of the effects on commerce of matters neither traditionally part of interstate commerce, nor part of "traditional state regulation." Such congressional findings may retain the respect withheld by Chief Justice Rehnquist in Morrison. For such findings neither put the Court on the slippery slope where everything local can get aggregated for nationalization purposes, nor do they frontally assault the Court's focus of concern, the division between "traditional state regulation" of crime and family law, and the areas of potential federal activity, especially, as in Morrison and Lopez, federal court implementation cases.

Let us illustrate using different kinds of arguments in defense of the ESA. There is a kind of argument that is straight-out aggregation involving little in the way of congressional resolution of conceptually challenging issues. An example consists of the instances of nature observing, hunting, and fishing of wildlife including endangered species, and aggregating those instances into findings about the national tourism industry as it relates to some species. Sometimes that straightforward aggregation seems enough to justify the ESA for some species. For example, in the Fourth Circuit decision upholding the ESA, Judge Wilkinson argues that "the relationship between red wolf takings and interstate commerce is quite direct—with no red wolves, there will be no red wolf related tourism, no scientific research, and no commercial trade in pelts. We need not 'pile inference upon inference,' . . . to reach this conclusion."²⁶

On first glance, such a narrower, straightforward defense of the ESA looks like the soundest course after Morrison. Endangered species of birds, mammals, and other vertebrates do attract tourism, and American tourism is interstate commerce. And, environmentalists are used to this line of reasoning. In dealing with the Article III standing challenges to environmental suits, environmental plaintiffs have had to show they suffer "injury-in-fact" by denial of their right to go as tourists and look at something in nature needing injunctive protection. The same value-deprived airline tickets to go bird watching that deal with Article III injury-in-fact problems seem available for dual duty to deal with Commerce Clause economic effect problems.²⁷

However, Chief Justice Rehnquist's rejection of Congress' findings for the VAWA also asks for something different than this seemingly narrow, straightforward approach to findings. What the Court intensely dislikes consists of transferring, or threatening to transfer, to the relatively small number of federal judges any substantial part of the enormous traditional load carried both historically, and presently, by the much larger number of state judges. Lopez and Morrison consist of the Court telling Congress that regardless of how it adds up the effects of matters traditionally handled by state judges, like violent crime or drugs in school, the Court does not want to consider those "commerce." So, whether the adding-up math is straightforward or attenuated, the Court just does not want to accept such findings.

But, change the context away from one in which Congress shifts the traditional work of state courts into the federal courts, and alter the nature of the requisite findings, and the Court can then make good use of congressional findings. Let us continue with the ESA as the example. If the ESA's defense came down to whether Congress can add and multiply more successfully than it did for the VAWA in Morrison, the ESA would get the following types of arguments thrown at it. Even in the Fourth Circuit case about wolves, Judge Luttig's dissent chops away at mere addition built upon the 41 wolves on private lands in North Carolina:

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The number of inferences (not even to mention the amount of speculation) necessary to discern in this activity a substantial effect on interstate commerce is exponentially greater than the number necessary in [Lopez] to show a substantial effect on interstate commerce from the sale of guns near schools or in [Morrison] to show a substantial effect on interstate commerce from domestic assault.²⁸

In other words, even to tourism-relevant vertebrate species like wolves, a (conservative) judge's reasoning about effects on commerce gets assaulted byanother (more radically conservative) judge's belief that the chain of inferences is overextended.²⁹ One need hardly imagine what critics of the ESA will say about the tourism-relevant chain of inferences, not from birds or mammals, but from little-known insect or plant species. And, as Judge Luttig shows, it is an easy comparison between the Court's rejecting Congress' findings about aggregation for the VAWA, and rejecting findings for extended chains of inferences about populations of insects or plants.

Yet, the justifiers of the ESA, from Congress on, have not shrunk from, but, rather, have gloried in the challenge of defending preservation of obscure species. Just as the D.C. Circuit, and Professor Nagle, defended the preservation of the Delhi Sands Flower-Loving Fly, the eloquent Senate sponsor of ESA amendments, Sen. John Culver (D-Iowa), defended the preservation of the Furbish Lousewort, and the Court case about the ESA concerned the preservation of the Snail Darter. The inferences here do not consist so much of addition or multiplication, but of confidence in judgments in the realm of probabilistic inference from piecemeal, preliminary indications of a scientific nature. It is not that there are a large number of small but definite impacts from each insect or plant of an endangered species, with Congress adding them all up (and the Court therefore worrying about the slippery slope from the ESA to universal federal laws protecting all insects and plants everywhere). Rather, in the ESA Congress made the judgment that biodiversity was of "incalculable" value,³⁰ and from there, the inference is that part of that "incalculable" value includes future interstate commerce. Congress' findings involved a quality of judgment to which the Court can defer, without giving up the nondeference of Lopez and Morrison.³¹

To put it differently, the Commerce Clause issues of the 1930s through the 1970s differed from the issue posed today by environmental law. Congress engaged in the 1930s in economic regulation, in the 1960s of civil rights regulation, and in the 1960s and 1970s of anti-organized crime regulation, of instances of local activity each of which had a concretely assessable, if individually small, effect on interstate commerce. The tolerant Court of the late 1930s, the Warren Court era, and the Burger Court era accepted Congress adding up those local activities and let Congress act. Now we have a Court that resists that approach, because of the "slippery slope" problem with dragging the federal judiciary into traditionally local fields. But, environmental laws, especially the ESA, need not be seen as posing an issue of concretely assessable but small effects of local activity on interstate commerce. Rather, environmental laws pose the issue of a different kind of assessment of effects, which even the federalism-minded Court can accept without giving up what it considers itself to have accomplished in Lopez and Morrison.

To some extent, this simply shifts the debate to what the Court thinks of the ESA as an intrusion upon a subject of traditional local regulation. For the ESA even before Morrison, the lines were drawn between critics and defenders on this issue. Critics of the ESA deem it an infringement on "land use regulation . . . [which] is traditionally within the expertise of the states and their local political subdivisions, not Washington, D.C.,"³² and even some defenders acknowledge "the areas of traditional state control impacted by these regulations."³³

There is no need to recapitulate the elaborate and diverse responses of ESA defenders, from citing past Court cases upholding mining reclamation regulations as justified under the Commerce Clause, to the inadequacy of state biodiversity and habitat protection.³⁴ The short answer is an intuitive one: whatever the Court may think of other federal environmental laws that have a comprehensive relationship to land use regulation, the episodic and sporadic nature of federal involvement in land use for the purpose of species preservation, and the relatively small degree to which the ESA shifts litigation traditionally going on in state courts into the federal courts, vitiates comparison to the wholesale invasion of a subject of traditional state concern the Court found with respect to laws federalizing drugs-near-schools or violence against women. We have almost 30 years of experience with the ESA, and it has not changed the case-load of the federal courts. The Court will not see the ESA as unconstitutional.

New Environmental Legislating

With this concrete analysis after Morrison of the challenge to the ESA as a specific example of Congress' role, the second part of this Dialogue examines a much more speculative subject: how Morrison shapes congressional environmental law making for the next decade.

Starting with the November 2000 election, and continuing in 2002, 2004, and 2006, I see a period of more unpredictable and unstable legislative politics than at other recent [30 ELR 10892] times. As of summer 2000, it is quite unpredictable whether the November 2000 election will produce a Republican or a Democratic presidency. With the extraordinary close current count in the House, it is equally unpredictable whether the election will yield a Republican or a Democratic majority in the House of Representatives. But since we will know the election's outcome in a few months, what is more important is that the elections down the road may well continue to have unpredictable aspects. Whatever happens in 2000, in 2002 there will be two big new factors; the tide in the off-year election can often flow opposite to the preceding presidential tide,³⁵ and the House reapportionment and redistricting from the 2000 census will likely produce incumbent turnover.³⁶ In 2004, with the next presidential election, will come another (unpredictable) tide. Moreover, at some point during these years, the electorally stabilizing effect of the past decade of American prosperity and growth may, or may not, come to an end if the business cycle reasserts itself. All this contrasts with such examples of electoral stability in the recent past as the Democratic majority in the House from 1954 to 1994, and the Republican hold on the presidency, with only one four-year interruption, from 1968 to 1992.

How does Morrison play in this context? First, the Supreme Court may, or may not, change in ways that reinforce the new federalism lines. The conventional wisdom says that Republican presidential victories mean years of potential Court appointments that reinforce the shaky 5-4 Morrison majority; Democratic presidential victories mean years of potential Supreme Court appointments that might overturn that majority. If this sounds excessively crude or result-oriented, the Court's back-and-forth movement about federalism for the past two decades has brought the Justices themselves to writing opinions virtually saying as much about this particular subject.³⁷ That is not true of all subjects. The Court has adhered to stare decisis on abortion, for example, and this past term it adhered to stare decisis on Miranda v. Arizona (Miranda)³⁸ warnings. But, on federalism, the Court swings, it knows it, and it says so.

Second, we may have, at some times during these years, a Democratic House and a Republican Senate. Because the agenda-control mechanisms³⁹ lie largely in the hands of the party and committee leaderships, this produces a situation where the two chambers express ideologically polarized viewpoints, even though the party majority in each chamber may be narrow. A 52% to 48% House expresses one viewpoint because that is all the party-controlled agenda control mechanism allows out, and a 48% to 52% Senate expresses the opposite viewpoint because that is all the party-controlled agenda control mechanism allows to make meaningful progress, even though the average difference between a 52% to 48% and a 48% to 52% chamber is small.

So, this suggests the possibility of enactment struggles in Congress becoming the locus of a national discourse about expanding the federal government's role in environmental matters. For example, suppose the issue of sprawl catches national interest, with support around the country for more deliberate preservation of, and less haphazard elimination of, our diminishing stock of open, natural, easily population-accessible space. Or, suppose further data on global warming causes that issue, which has lain fallow with the congressional antagonism to the Tokyo agreement (Kyoto Protocol), to catch national interest. Then, a Democratic House might hold high-visibility hearings and enactment efforts on these subjects, while a Republican Senate would take the opposite tack. A Republican Senate might well become the constant articulator of the position that state and local land use authority was sacred and "Washington" should keep out of it. On the other hand, the Republican Senate has had its own enthusiasms for national legislation, from barring state sales taxes for Internet sales to allowing takings challenges to local land use controls in federal court without exhaustion, so the predictable aspect is disagreement between the chambers rather than which chamber is pro-federalism on any particular issue.

Disputes between the parties, or the chambers, or even between Congress and the President, about new environmental laws and their federalism aspects, although it could lead to gridlock, could also lead to enacting legislation in sophisticated compromise ways. I have previously written about how the Court's new federalism reshapes congressional activity in subtle ways. In particular, Congress approved both the North American Free Trade Agreement (NAFTA), and the Uruguay Round Agreements in 1994, despite significant resistance and serious potential impacts on the states. Moreover, enactment of implementing legislation for those agreements occurred in the wake of Court decisions making it much harder for Presidents to knock down state resistance to international agreements. As I described, the key to enactment of implementing legislation took the form of innovative approaches, especially what I called "weak preemption," which amounted in the trade context to something like cooperative federalism in the domestic context.⁴⁰

For example, suppose a national consensus emerged from the discourse about the issues just mentioned, that the country needed legislation to deal with sprawl and with global warming, say, with enthusiastic support from a Democratic House. On the other hand, suppose enactment could hardly occur without accepting the viewpoint of the Republican Senate that, particularly after Lopez and Morrison, federal laws should respect local land use regulation and other kinds of local controls. To solve the simultaneous constitutional problems after Morrison, and political problems with the unstable and unpredictable politics, the solutions would probably involve (1) a minimal role for federal courts, and (2) a maximal role for existing state and local land use regulation and other kinds of local controls. This contrasts with, for example, the civil rights legislation of the 1960s, which created an extensive role for federal courts and did not vest primary confidence in local authorities. National departments may engage in planning and oversight, but the implementation, like permitting for industry, would likely go through traditional local channels.

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When this national discourse does generate new environmental laws, I would expect the Court's rulings to defer to justificatory congressional findings. It might be argued that the Lopez and Morrison rulings apply to attempted new legislation about issues like sprawl or global warming, to the extent that Congress acts in ways that assertedly displace local land use regulation. That is, critics of such laws would argue that any findings about how sprawl or global warming affect interstate commerce venture onto a "slippery slope" toward nationalizing a matter of "traditional state concern."

But, here, the analysis in this Dialogue's previous part about the ESA continues to apply. That is, the justificatory congressional findings do not consist simply of adding or multiplying small local activities to get a large aggregate effect on interstate commerce in justification of transferring a traditional local responsibility to the federal government. Rather, the justificatory congressional findings come from the realm of probabilistic inferring on a matter that is scientific in nature even if the evidence is piecemeal and preliminary. It is for Congress to decide, after a national discourse, whether changing conditions affect the national environment; that involves issues beyond the competence of courts. Particularly to the extent that Congress tailors its legislation to keep the role of federal courts minimal, and to operate at least in part through existing systems of state and local regulation—much as EPA operates through state granters of air and water permits, or state inspection and maintenance programs for vehicles—that reinforces the Court's willingness, even after Morrison, to defer to Congress.

Returning to Morrison, Justice Souter wrote one dissent, and Justice Breyer wrote another. All four dissenting justices joined in Justice Souter's whole dissent and in part I-A of Justice Breyer's dissent. It is of interest that Justice Breyer went ahead with Justice Stevens alone joining him in an innovative and exploratory line of reasoning in part I-B of Justice Breyer's dissent. Specifically, Justice Breyer noted "that Congress, when it enacted the statute, followed procedures that help to protect the federalism values at stake."⁴¹ He talked about "the legislative process leading up to enactment of this statute,"⁴² citing a series of "commentators [who] also have suggested that the thoroughness of legislative procedures—e.g., whether Congress took a 'hard look'—might sometimes make a determinative difference in a Commerce Clause case, say when Congress legislates in an area of traditional state regulation."⁴³ I have recently written at length about a key related subject on which these same two justices, Justices Breyer and Stevens, have (in my view) won over a majority of the Court to a line of respect for congressional procedure, namely, a selective, careful use of legislative history.⁴⁴

Justice Breyer concluded this part of his opinion that:

I recognize that the law in this area is unstable and that time and experience may demonstrate both the unworkability of the majority's rules and the superiority of Congress' own procedural approach—in which case the law may evolve towards a rule that, in certain difficult Commerce Clause cases, takes account of the thoroughness with which Congress has considered the federalism issue.⁴⁵

The sensitivity of Justice Breyer's comments placed him in a long⁴⁶ and continuing⁴⁷ tradition that has recognized the political safeguards in Congress for federalism, while seeking a way to balance these against the intensity of the Court's majority view that those safeguards occasionally prove inadequate. While Justice Breyer dissented, he also seemed to foreshadow a future in which he might be in the majority and yet want ways not so much to doctrinally reverse Lopez and Morrison, as to find in Congress' own procedural approach a basis to distinguish them. In this way, either he might win a member of the current Morrison majority, such as Justice O'Connor, to his side on some arguably distinguishable issue, or he might offer some newly appointed Justice a way to join him with the least disrespect to precedent.

This attention to Congress' own procedural approach adumbrates how congressional findings might, even after Morrison, provide the key to future environmental legislation. For, it is not only the substantive ingenuity that Congress shows in devising such legislation, that will determine whether it passes Commerce Clause muster. It is the very process and effort that Congress devotes to the national discourse about federalism and the environment, that will justify the ensuing legislation.

Despite this guardedly optimistic assessment, the possibility cannot be dismissed that the Court might not go along with new environmental laws.⁴⁸ For example, suppose we have years of Court appointments reinforcing the Morrison majority, followed by a pro-environmental electoral swing and a wave of new environmental legislation. The Court of 2010 might strike new environmental laws down wholesale. Such a rigidly nondeferential Commerce Clause jurisprudence would, in the end, meet the fate to which the political tidal wave of the 1930s dispatched the rigidly nondeferential Commerce Clause jurisprudence of the Lochner v. People of the State of New York (Lochner)⁴⁹ era.

Conclusion

Morrison signifies a period of scrutiny of whether the environmental laws, old and new, pass Commerce Clause muster. Because congressional findings as to the effects of environmental problems differ from the kind of congressional findings in Morrison, they should provide a basis for upholding such laws. The United States does have national environmental problems. Its people properly consider Congress to have the power, and the responsibility, to address those problems. Ultimately, the Court will let Congress do so.

1. See, e.g., Glenn P. Sugameli, Lucas v. South Carolina Coastal Council: The Categorical and Other "Exceptions" to Liability for Fifth Amendment Takings of Private Property Far Outweigh the "Rule", 29 ENVTL. L. 939 (1999).

2. American Trucking Ass'n v. EPA, 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999), panel opinion modified & reh'g en banc denied, 195 F.3d 4, 30 ELR 20119, cert. granted, 120 S. Ct. 2193 (2000).

3. 120 S. Ct. 1740 (2000).

4. 514 U.S. 549 (1995).

5. Art. I, § 8, cl. 3 gives Congress power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

6. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

7. Marcia Coyle, What's Left After "Morrison": VAWA Ruling Leaves Congress Quite a Few Commerce Powers, NAT'L L. J., May 29, 2000, at 1.

8. Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 CASE W. RES. L. REV. 695 (1996); Muriel Morrisey Spence, What Congress Knows and Sometimes Doesn't Know, U. RICH. L. REV. 653 (1996).

9. See generally Charles Tiefer, The Senate and House Counsel Offices: Dilemmas of Representing in Court the Institutional Congressional Client, 61 LAW & CONTEMP. PROBS. 47 (1998).

10. I filed the Brief Amicus Curiae of the House Democratic leadership, Dickerson v. United States, 120 S. Ct. 2326 (2000), and the Supplemental Brief Amicus Curiae of the Project on Government Oversight, Vermont Agency of Natural Resources v. United States ex rel. Stevens, 120 S. Ct. 1858 (2000) (both with co-counsel, Jonathan W. Cuneo).

11. Charles Tiefer, Controlling Federal Agencies by Claims on Their Appropriations? The Takings Bill and the Power of the Purse, 13 YALE J. ON REG. 501 (1996); Charles Tiefer, Taking "Takings Rights" Seriously: A Debate on Properry Rights Legislation Before the 104th Congress, 9 AM. U. ADMIN. L.J. 273 (1995).

12. Charles Tiefer, Alongside the Fast Track: Environment and Labor Issues in the FTAA, 7 MINN. J. GLOBAL TRADE 329 (1998); Charles Tiefer. OSHA's Toxics Program Faces a Supreme Court Test, 30 LAB. L.J. 680 (1979); Charles Tiefer, NEPA and Energy Supply: A Case Study, 22 BNA ENVTL. L. MONOGRAPH (1976).

13. Charles Tiefer, Free Trade Agreements and the New Federalism, 7 MINN. J. GLOBAL TRADE 45 (1998).

14. 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997).

15. John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 MICH. L. REV. 174, 179 (1998).

16. Gibbs v. Babbitt, 214 F.3d 483, 30 ELR 20602 (4th Cir. 2000).

17. Id. at 487, 30 ELR at 20604 (citing 16 U.S.C. § 1531(a)(3), ELR STAT. ESA § 2(a)(3)).

18. 120 S. Ct. at 1752.

19. Id.

20. Id.

21. Id. (quoting the VAWA conference report).

22. Id.

23. Id. at 1754.

24. Id. at 1752-53.

25. Id. at 1753.

26. Gibbs v. Babbitt, 214 F.3d 483, 493-94, 30 ELR 20602, 20608.

27. Christopher J. Sprigman, Standing on Firmer Ground: Separation of Powers and Deference to Congressional Findings in the Standing Analysis, 59 U. CHI. L. REV. 1645 (1992).

28. 214 F.3d at 507-08 (dissenting opinion).

29. My views are no secret on the subject of how very conservative judges of the Fourth Circuit work with kindred spirits on the Supreme Court. Warren Richey, Two Kindred Courts Break Legal Ground, CHRISTIAN SCI. MONITOR, June 19, 2000, at 1.

30. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 178, 8 ELR 20513, 20519 (1978) (quoting H.R. REP. No. 93-412, at 4-5 (1973)).

31. Commentators have noted that Congress did not focus in its 1973 findings about the "incalculable" value of biodiversity on how that value affected interstate commerce. While it might seem better for congressional findings to address the precise points that interest the Court, in my own decades of defending statutes, I have not found that the judiciary cared, in matters of constitutional power, about that kind of focus. If the Court accepts congressional findings that biodiversity has "incalculable" value, the Court will not then fail to see the effect on interstate commerce.

32. David A. Linehan, Endangered Regulation: Why the Commerce Clause May No Longer Be Suitable Habitat for Endangered Species and Wetlands Regulation, 2 TEX. REV. L. & POL. 365, 419 (1998).

33. J. Blanding Holman IV, After United States v. Lopez: Can the Clean Water Act and the Endangered Species Act Survive Commerce Clause Attack?, 15 VA. ENVTL. L.J. 139 (1995).

34. Omar N. White, The Endangered Species Act's Precarious Perch: A Constitutional Analysis Under the Commerce Clause and the Treaty Power, 27 ECOLOGY L.Q. 215 (2000); Stephen M. Johnson, United States v. Lopez: A Misstep, But Hardly Epochal for Federal Environmental Regulation, 5 N.Y.U. ENVTL. L.J. 33 (1996).

35. The last party majority swing in Congress occurred in 1994, an off-year. The party change before that, in the Senate, occurred in 1986, another off-year. Both were swings against the party that had elected the President two years earlier.

36. Big turnover occurred in the House in 1992 and 1982, the last two post-census elections.

37. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 580 (1985) (Rehnquist, J., dissenting) (finding it unnecessary "to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court").

38. 384 U.S. 436 (1966).

39. See generally CHARLES TIEFER, CONGRESSIONAL PRACTICE AND PROCEDURE (1989).

40. Tiefer, supra note 13, at 45.

41. 120 S. Ct. at 1777.

42. Id.

43. Id. at 1778.

44. Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 WIS. L. REV. 206.

45. 120 S. Ct. at 1778.

46. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).

47. Larry D. Kramer, Putting the Politics Back Into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000).

48. There has been a recent streak in the Court that completely disdains congressional pronouncements on constitutional subjects. City of Boerne v. Flores, 117 S. Ct. 2157 (1997). The irony is that the Court did not dare express that kind of disdain during periods, such as the 1950s, when ideological extremism had such a hold on certain aspects of congressional action that such disdain was warranted. It is only when Congress is more self-controlled on constitutional issues that the Court can take the liberty to express disdain for its not being sufficiently self-controlled.

49. 198 U.S. 45 (1995).