The Endangered Species Act's precarious perch: a constitutional analysis under the Commerce Clause and the treaty power

White, Omar N.
January 2000
Ecology Law Quarterly;2000, Vol. 27 Issue 1, p215
Academic Journal
Provisions of the Endangered Species Act have come under attack by critics who believe that Congress overstepped its constitutional authority. Because underlying treaties do not support the view that the Endangered Species Act can be justified under the Treaty Power, the vitality of the Act rests on the Commerce Clause. The combination of thecommercial importance of biological diversity and federalism concerns counsels against finding that any provisions of the Endangered Species Act are unconstitutional. In order to ensure that courts will arrive at this conclusion, Congress should modify the language defining the findings and purpose of the Act to clarify the connections with the Endangered Species Act's connection to commerce.


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