so what's hop-pening with these toads?

Sorry about the pun; I can't resist.

So I don't see anything awful about this John Roberts guy so far, but the discussion over his nomination has made me start thinking of something that has bothered me since I first read about it. In a 2003 dissent, Roberts argued that because a certain species of toad only exists in California, it might not be governed by the Endangered Species Act. (See this article in the Miami Herald. Now I don't see this as a reason to oppose Roberts, since he's said there might be other justifications for the act and he said he thought it should be reviewed anyway. I'd worry if he displayed a general disregard for environmental legistlation, but this article suggests that's not going to be a problem. But I'm vexed by the specific argument in the toad case.

Even tho I'm sympathetic with the New Deal and its descendants, it's pretty clear that the federal government uses "interstate commerce" to justify all sorts of things the Foudners wouldn't have intended. So I could understand if some people, even members of the federal judiciary, thought that the *entire* Endangered Species Act is unconstitutional. But I believe precedent establishes that if you're justifying a law using the commerce clause, you can't use the "I kept it in one state" excuse to get out of it. The most recent example is the Supreme Court ruling on marijuana in California (the CNN story linked there cites the majority opinion, which says the thing being regulated must have a "substantial effect" on interstate commerce). One of the other interns here, a law student, mentioned a case from the New Deal era in which a farmer grew and ate his own crops in Ohio and felt he should be exempt from regulation (he lost).

The point is I don't think you can do piecemeal federalism. The Endangered Species Act is a lot like laws governing *actual* interstate commerce; to be effective, it has to regulate things that stay within one state, because they have an overall effect on everyone else. Besides, if the point of the "federalism revolution" is to empower states, this doesn't seem to do it. Let's say the California toad had been exempted from the act. California might want to protect it, but if it did, it would be forced to create an entire program just for this one create that happened to stay in-state most of the time. I could see the Supreme Court or Congress deciding that species regulation is best left to the states. But exempting a handful of species doesn't seem to help them do that.

But -- as this blog is about questions -- does anyone know of a *different* sort of justification for exempting species that stay within one state, one that would be compatible with commerce clause precedent? Or am I just hopping mad?