The appeal had attracted widespread attention as the most potent of several efforts around the country to make the case that Congress's power to regulate interstate commerce did not extend to protecting animal or plant species that lack commercial value and that live in only one state.
Coming a week after the court upheld federal authority over marijuana, even in states where its use for medical purposes is legal, the justices' action on Monday provided the latest evidence that the Rehnquist Court's federalism revolution is on the wane. At the least, the court clearly has no appetite to take the federalism battle to new ground.
The latest case, GDF Realty Investments v. Norton, No. 03-1619, concerned six endangered species of small insects that live only in caves and sinkholes in two counties in Texas. Their habitat includes an undeveloped tract west of Austin where developers planned to build office, apartment and retail complexes, including a Wal-Mart.
Thwarted by the presence of the endangered species, the developers went to Federal District Court in Austin to challenge the constitutionality of applying the law to these circumstances. Both the district court and the United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled against them.
The appeals court found that although the six species themselves did not have an impact on commerce, all endangered species taken as a whole did have such an impact, and it was from that perspective, the court said, that Congress's authority should be evaluated. Six of the 15 appeals court judges then voted to rehear the case but fell short of the required majority.
In its petition for Supreme Court review, filed in May 2004, the developer said the appeals court had "seriously misunderstood" recent Supreme Court precedents that had limited Congress's authority under the Constitution's Commerce Clause to activities that substantially affect interstate commerce. The petition said the Fifth Circuit had reduced the clause "to the intellectual joke that it had become" before the Supreme Court issued those decisions.
The appeal was supported by groups including the National Association of Home Builders, the National Farm Bureau Federation, and the States of Texas, Alaska, Delaware and New Jersey. "The states have a significant interest in maintaining their sovereign control over wildlife regulation, land-use planning, and other matters of traditional state concern within their borders," the Texas brief said.
In its brief opposing Supreme Court review, the federal government noted that all appeals courts to have considered the question had upheld the constitutionality of the Endangered Species Act. Ordinarily, a conflict among the lower courts is the most telling indicator of the Supreme Court's likely interest, and the justices do not often grant review in the absence of such a conflict.
The government also told the court that the Fifth Circuit was correct to focus on the interdependence of all species, given that individual species might have as-yet-unknown uses. In any event, the use the developers wanted to make of the property was clearly commercial, the brief said.
Lawyers for the developers filed a supplemental brief last week, after the Supreme Court's ruling in the marijuana case, arguing that "the need for this court's immediate intervention remains just as dire" as it was before. "The blow to our nation's federalist principles from leaving the decision below unreviewed would be severe," the brief said.
At the same time, at the request of the Bush administration, the Supreme Court summarily vacated another appeals court decision that had raised a similar Commerce Clause question but that had resolved it against the government.
In this case, United States v. Stewart, No. 04-617, the Court of Appeals for the Ninth Circuit ruled that the federal ban on machine-gun possession could not be applied to a homemade gun that had not traveled in interstate commerce.
The Ninth Circuit, in San Francisco, was the same court that had barred application of federal drug laws to California's "compassionate use" medical-marijuana initiative. In a one-sentence order, the justices on Monday ordered the Ninth Circuit to reconsider its machine-gun ruling.
Next week, the justices are likely to take the same action in a case in which another appeals court, the 11th Circuit in Atlanta, overturned a conviction for the production and prosecution of child pornography on the ground that there was insufficient evidence of interstate activity. That case is United States v. Smith, No. 04-1390.