Without comment or recorded dissent, the Supreme Court today denied review of a case from the 5th Circuit, called GDF Realty Investments, Ltd. v. Norton, that raised the question whether the Endangered Species Act could, consistent with Congress’s limited power to legislate under the Commerce Clause, be applied to limit the development of land upon which reside several rare types of insects and spiders that live only in Texas (the 5th Circuit upheld the Act). The Court’s refusal to hear this case, along with its refusal last year to hear a similar one, Rancho Viejo LLC v. Norton, suggests that the Court might have had enough of the Commerce Clause battle for a while. It would not be surprising to see the Court allow the lower courts to spend some time evaluating a variety of different Commerce Clause challenges based on the recent trio of Raich (medical marijuana), Morrison (Violence Against Women Act), and Lopez (gun-free school zones), before deciding to wade in again. Of course, that could change, especially if some Court of Appeals decides to hold the Endangered Species Act unconstitutional, thereby creating a circuit split with the 5th (GDF Realty) and D.C. (Rancho Viejo) Circuits and effectively requiring the Supremes to step in.
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