While I agree with the mission of the ESA in principle, it remains that the states have never expressly constitutionally delegated to the feds the specific power to define, regulate, tax and spend in the name of protecting such species.
“Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” —Justice John Marshall, Gibbons v. Ogden, 1824.
”From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added].” —United States v. Butler, 1936.
So it's uniquely up to the individual states to define and protect endangered species until the states decide to appropriately amend the Constitution to give the feds such powers.
Corrections, insights welcome.
The legal problem with the Environmental Species Act was that Congress ceded its rule-making authority to the executive branch. If Congress were to instead, for instance, vote to include various species under the Act, and on reasonable means of protection, that would be totally legitimate.
The problem with the Commerce clause is that now that the feds control most everything, most everything DOES relate to interstate commerce; It’s purpose has been utterly thwarted. But it did have a legitimate purpose: There are some matters which states CANNOT adequately address. But instead of relying on federal powers when states cannot adequately address something, we’ve relied on it for anything that the federal government provides a theory for how it COULD address it.
So here’s how you do the ESA the right way: It’s within the national interest to protect the Bald Eagle. The Bald Eagle’s habitat does not follow state lines. Therefore, these following regulations are implemented for any property involved with interstate commerce...
Famer Joe has a family farm. He borrows money from a local bank. He sells vegetables at the local farmer’s market; he sells wheat to the local bakery; etc. His property is exempt from these regulations.
Farmer McKenzie hires workers on agricultural visas. He borrows money from a national corporation which protects its investment with futures traded in New York. He sells his wheat to Pillsbury. His property is not exempt from these regulations.
Maybe Congress might even decide that the futures trading involving McKenzie’s wheat is valuable to the national economy, and write regulations involving futures trading that permit McKenzie to remain exempt from legislating citing the commerce clause.