Some members of Congress are taking a break from their usual efforts to dismantle the Endangered Species Act and are trying instead to micro-manage it, by employing the unprecedented strategy of using legislation to remove a protected species--gray wolves--from the list.
Both the House and Senate now have bills in play that would remove gray wolves from the endangered species list by an act of Congress. And just last week U.S. Rep. Mike Simpson, an Idaho Republican who chairs the House appropriations subcommittee that oversees the Interior Department, added a provision to the GOP's continuing budget resolution that would end federal protection for gray wolves throughout most of the Northern Rockies.
With the current budget resolution set to expire on March 4, there is a very good chance this provision will be enacted as part of the new budget measure, which is needed to keep the government funded through the end of the current fiscal year on September 30.
Simpson's provision directs Interior Secretary Ken Salazar to reissue a 2009 rule that temporarily took wolves off the endangered species list in Montana, Idaho and parts of Oregon, Washington and Utah, and declares that the reinstated rule "shall not be subject to judicial review." Gray wolves would remain under federal protection in Wyoming and throughout the Southwest.
By placing the status of gray wolves off limits to the courts and any sort of legal challenge, however, Simpson's provision effectively would put Congress in charge of wolf management, making it the final judge of when and whether gray wolves have recovered to a point where they no longer need federal protection. Further, if gray wolf populations again reached critically low levels, it would be up to Congress to restore that protection.
The debate over whether and to what degree gray wolves should be protected in the Western United States has been raging for decades--and it's not likely to end soon. The species was hunted nearly to extinction in the 1930s and beyond, driven by ranchers' claims that wolves were ravaging their livestock. Gray wolves later gained federal protection and were reintroduced in Yellowstone National Park in the 1990s. Since then, the number of gray wolves has grown steadily and is currently estimated at somewhere between 12,000 and 16,000.
Today, ranchers and hunters are lobbying the government to declare open season on gray wolves, claiming that the predators are doing serious damage to livestock herds and game animals such as deer and elk. Environmentalists and many scientists are pushing to continue federal protection for gray wolves, pointing to studies that show far more livestock is killed by weather, disease and dogs than by wolves, and that game populations have actually increased in areas where wolves have been reintroduced and allowed to thrive.
No matter which side of the wolf debate you favor, and no matter where you are on the political spectrum, this move by Congress and the dangerous new precedent it would set raises serious issues:
- First, it takes questions of species protection, and potentially all environmental protections, out of the hands of scientists and places them in the hands of politicians, who have neither the training nor the objectivity needed to make such decisions. Some decisions simply should not be political. This is one of those.
- Second, Congress has no business passing laws and then making them "not subject to judicial review." This is a direct assault on the civil liberties of all Americans and is probably unconstitutional--it's hard to maintain separation of powers if one branch of government can tell another to mind its own business.
If you're someone who thinks the only good wolf is a dead one, don't get bogged down in this specific issue. Consider this question in the context of an issue that is closer to your own heart. If you're an avid hunter, for example, imagine Congress passing a law that says it is now unlawful for anyone in the United States to own a gun of any kind--which you and many others would no doubt consider unconstitutional--and then imagine your elected representatives tacking on some extra language saying that no one can challenge the new law in court.
- Third, it is against House rules to legislate in an appropriations bill. The rule was established to keep authorizations and appropriations separate, but it applies here as well. And, yes, House rules are often modified to meet various circumstances, but this one is pretty fundamental and there is nothing about these circumstances that justifies altering, or ignoring, the rule.
Last November, American voters gave Republicans control of the U.S. House of Representatives, in part because GOP candidates universally promised to change the way Congress operates. It would serve them well to remember that voters intended it to be a change for the better.
Photo by Getty Images
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Comments
Interesting and while I think it is wrong for Congress to eliminate protection for grey wolves in some areas and not in others (I think it is wrong to eliminate them at all actually)…
Your comments about Congress affecting our civil liberties are a bit of a stretch. I believe grey wolves are a protected animal only because of the Endangered Species Act — an act that Congress created. If Congress wants to withdraw that proctection and to exempt their decision from judicial review.. Congress has the legal right to just that. The rights of grey wolves are not addressed by the U.S. Constitution. (Regardless I agree it is bad form and bad for the enviroment.)
However, your example about Congress abridging the right to own guns for hunting and exempting it from judicial review is NOT a good example. Congress cannot do anything unconstitutional and exempt it from judicial review — Judicial review is automatic if an individiuals rights (and enumerated or assumed in the Constitution) are affected. The right to bear arms has always been thought of as a right protected by the Constitution. Therefore there will always be the right to have judicial review of any restriction on gun ownership — even if Congress says a specific restriction is not subject to judicial review in a law they pass.
Thanks for your comment, JTW.
I agree the guns example was a little far-fetched. Although there is certainly nothing to stop Congress from passing an unconstituional law (they’ve certainly done it many times before), I agree any effort by Congress to exempt such a law from judicial review would fall flat. That doesn’t mean they might not try.
On the other hand, I do believe that ANY attempt by Congress to exempt their own laws from judicial review is, in itself, a constitutional violation, because it effectively says that Americans in those cases cannot seek relief from the courts. That’s a right guaranteed by the U.S. Constitution and can’t be negated by Congress.
I won’t comment on your sudden & miraculous conversion to Constitutional conservatism, Larry, but I agree with you about legislative shennanigans. OTOH- I prefer Congress dealing with rules and not un-elected bureaucrats who don’t answer to the public.
We have a legitimate problem: protection of the environment vs the needs of those who live in the areas involved. Because many of the deciding votes on the issue are held by do-gooders who have no stake in the problem, legislative slight-of-hand appears. Perhaps the problem should be dealt with on the local and not federal level?
A compromise is necessary: game reserves, contolled culls/hunting, open season all need to be considered and can vary by location.
I’m sure we all like to leave mold growing on a tree in the forest unmolested, but vigorously attack mold in our bathrooms with cleaning fluid. Couldn’t our dealings with other species be analogous?