A blind spider creeping through America’s judicial thicket might be heading to the Supreme Court, which will have to decide if the survival of the Bone Cave Harvestman spider species, which lives only in two central Texas counties, is any of the federal government’s business. If it is, what isn’t?
The U.S. Fish and Wildlife Service, which administers the Endangered Species Act, is blind to the limits of its imperium, which it thinks encompasses telling John Yearwood what he can and cannot do on the ranch that has been in his family since 1871. To stymie the USFWS, Yearwood must surmount, among other things, a precedent involving Roscoe Filburn, the Ohio farmer whose 1942 loss in the Supreme Court mocked the doctrine that the federal government is one of limited, because enumerated, powers.
Filburn was minding what he thought was his business when Washington taught him that the Constitution’s Commerce Clause means that almost everything is the federal government’s business. To stabilize prices, the government set production quotas not only for wheat sold into interstate commerce but for wheat consumed on the farm for animal feed. Filburn expressed his dissent by producing 269 bushels in excess of his quota and refusing to pay the fine.
His insubordination reached the Supreme Court, which by then was thoroughly deferential to the New Deal’s capacious theory of federal power. The court held that Congress could regulate even Filburn’s wheat that never reached interstate commerce, because that wheat “supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.”
