Hastings Constitutional Law Quarterly


Sophie Akins


In 1995, the Supreme Court in United States v. Lopez reined in Congress' commerce powers by holding that Congress may only regulate activities that substantially affect interstate commerce. Five years later, the Court in United States v. Morrison reaffirmed Lopez and held further that the Commerce Clause only supports Congress' regulation of activities that are economic in nature. This Note examines the repercussions of Lopez and Morrison on Congress' power to enact the Endangered Species Act under the Commerce Clause. Most scholars and courts seem to agree that the Endangered Species Act will fail under the Court's recent Commerce Clause jurisprudence.

In contrast with its narrow delineation of Congress' Commerce Clause power, the Court has broadly interpreted Congress' power under the Property Clause. The scope of Congress' property power is significant considering that nearly one-third of the land in the United States is owned by the federal government. More importantly, the Court has upheld Congress' regulation of private activity on private land because it impacted public land. This Note analyzes the constitutionality of Congress' power to prohibit harming endangered species under the Property Clause. The author concludes that many applications of the Endangered Species Act will survive such analysis.