This Comment examines the controversial relationship between the ESA and the Commerce Clause. Part I provides an overview of the Commerce Clause and the ESA. Part II reviews the evolution of the Commerce Clause and examines, in its current form, the Constitution's capacity to support the ESA. Part III examines the likelihood of Supreme Court review of the ESA due to conflicting circuit court opinions and recent changes in the Supreme Court composition. Part IV identifies several factors that endanger the ESA at the Supreme Court level. The Comment concludes that, despite several seemingly favorable factors, the Commerce Clause framework is still inadequate to support the ESA, which remains in danger of a constitutional attack at the Supreme Court level. Though our current constitutional framework leaves the ESA vulnerable to attack, the ESA should not suffer as a result of our court system's shortcomings. Therefore, Part V proposes solutions to this inadequacy, including a shared responsibility between state and federal entities, several legislative remedies, and a recommendation for the Supreme Court to adopt the Fifth Circuit's rationale. Within these solutions, the Comment ultimately favors the comprehensive scheme rationale as applied to the ESA. Though not perfect in all respects, it is the solution that would allow for the broadest protection for all endangered species, and is therefore the most desirable among those in the environmental community.
Jennifer A. Maier,
Outgrowing the Commerce Clause: Finding Endangered Species a Home in the Constitutional Framework, 36 Golden Gate U. L. Rev.