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Full-Text Articles in Law
After Gonzales V. Raich: Is The Endangered Species Act Constitutional Under The Commerce Clause?, Bradford Mank
After Gonzales V. Raich: Is The Endangered Species Act Constitutional Under The Commerce Clause?, Bradford Mank
Faculty Articles and Other Publications
In both its 1995 decision United States v. Lopez and in its 2000 decision United States v. Morrison, the Supreme Court had adopted a narrow economic interpretation of congressional authority to regulate intrastate activities under the Commerce Clause. In four separate cases, three circuit courts (the District of Columbia, Fourth, and Fifth Circuits) struggled with deciding whether Congress may still protect endangered and threatened species that have little commercial value under the Commerce Clause after Lopez and Morrison. In each case, the court concluded that Congress did have the authority to protect endangered species under the Commerce Clause, including small …
Prudential Standing And The Dormant Commerce Clause: Why The 'Zone Of Interests' Test Should Not Apply To Constitutional Cases, Bradford Mank
Prudential Standing And The Dormant Commerce Clause: Why The 'Zone Of Interests' Test Should Not Apply To Constitutional Cases, Bradford Mank
Faculty Articles and Other Publications
In a unique decision, the Fifth Circuit in National Solid Waste Management Ass'n v. Pine Belt Regional Solid Waste Management Authority (NSWMA) used the prudential zone of interests standing test to bar the plaintiffs, who met constitutional standing requirements, from filing a facial, per se challenge under the dormant Commerce Clause. Six Mississippi counties and cities that are members of the Pine Belt Regional Solid Waste Management Authority (the Authority) had enacted flow control ordinances that required all solid waste collected in their six jurisdictions be sent to the Authority's facilities, and, thus, prohibited the export of waste to alternative, …
Can Congress Regulate Intrastate Endangered Species Under The Commerce Clause?, Bradford Mank
Can Congress Regulate Intrastate Endangered Species Under The Commerce Clause?, Bradford Mank
Faculty Articles and Other Publications
In Spring 2003, both the 5th Circuit and the D.C. Circuit agreed that Congress has the authority under the Commerce Clause to protect intrastate endangered species on private lands under the Endangered Species Act (ESA), but used completely opposite reasoning to reach the same result. The 5th Circuit in GDF Realty v. Norton rejected the government's argument that the economic impact of the commercial development regulated under the statute was the appropriate focus for whether the statute has a substantial effect on interstate commerce. Instead, the 5th Circuit concluded that intrastate spiders and beetles, which have no economic value, do …
Protecting Intrastate Threatened Species: Does The Endangered Species Act Encroach On Traditional State Authority And Exceed The Outer Limits Of The Commerce Clause, Bradford Mank
Faculty Articles and Other Publications
After the Supreme Court decided Lopez, a number of commentators speculated about its impact on the Endangered Species Act. This Article reexamines the issue in light of Morrison and SWANCC. Part V demonstrates that, even after Lopez, Morrison, and SWANCC, the Commerce Clause reaches federal regulation of intrastate endangered or threatened species because conservation of such species has traditionally been a shared federal and state function that recognizes the legitimacy of federal regulation whenever the need for preservation is great and states have failed to address important conservation issues. Additionally, Part V shows federal regulation of endangered or threatened species …
Out-Of-State Trash: Solid Waste And The Dormant Commerce Clause, Bradford Mank
Out-Of-State Trash: Solid Waste And The Dormant Commerce Clause, Bradford Mank
Faculty Articles and Other Publications
America faces a garbage crisis. Many cities and states are rapidly depleting their landfill capacity for ordinary municipal solid waste.The "Not In My Back Yard" (NIMBY) syndrome hinders regional and national solutions to the solid waste problem. This Article examines to what extent local communities may exclude solid waste from out-of-state sources without violating the Commerce Clause.