Ron Maxwell & Bruce Fein: The Constitution and the Endangered Species Act

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Father of the Constitution James Madison and oracle of the separation of powers Baron Montesquieu agreed that combining legislative and executive power in a single branch would be tyranny.

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty,” Montesquieu wrote in his famous treatise The Spirit of Laws, a work which inspired Madison and our Founding Fathers to include the doctrine of the separation of powers in our Constitution.

When our executive branch ignores the separation of powers to bypass Congress, we get things like President Obama’s Deferred Action for Childhood Arrivals (DACA). And now it appears that the Trump administration is saluting Obama’s ill-conceived precedent when it comes to weakening the Endangered Species Act.

Congress has not been indifferent about modifying the ESA. After the U.S. Supreme Court’s famous snail darter decision in TVA v. Hill, Congress amended the Act to create a seven-member cabinet level “God squad” to grant exceptions in cases of regional or national importance, including exceptions for economic considerations.

Since then, Congress has entertained literally scores of bills to do exactly what the Interior Department is now doing by fiat. Every single congressional bill failed in every single Congress, whether led by Democrats or Republicans.

If you want to see classic examples of Orwellian double speak and crony capitalism, read the “expert” justifications given by the Department of the Interior for removing the Endangered Species Act’s torso and leaving only its stunted limbs.

Their arguments are “talking points” written by special interest lobbyists on K Street that were then disseminated to sympathetic think tanks, “experts,” and journalists. We know how this works.

This is par for the course in the Beltway Swamp. We’ve read the same thing now at about a half dozen different libertarian and corporate sites with the text slightly edited by the various writers.

Some conservative think tanks are parroting the rationale of the Department of Interior’s bureaucrats and the vested interests who stand to profit from vivisecting the ESA. They are positing this as a “liberty” issue, but it is actually setting a precedent that destroys liberty—like destroying a village to save it.

Even without this weakening of the ESA, Wildlife Services under the Agriculture Department is spending one billion dollars a year killing wild animals – killing them outright – so that ranchers don’t have to hire range riders to protect their herds themselves. This is crony capitalism and government welfare on steroids. Hundreds of dogs and other pets also routinely get killed in this indiscriminate dragnet.

The American people through their elected representatives passed the ESA in the 1973. It has been remarkably successful in saving many species that were then facing extinction, including our iconic bald eagle, and the “God squad” has been summoned when the need for an exception has been demonstrated.

This bureaucratic power grab by the Department of the Interior is not being done in the interest of endangered or threatened animals. Honestly, who believes that?

This is being done exclusively to facilitate access for big corporate interests to more easily and more quickly log, mine, and graze on vast public lands owned by all the American people.

It’s being done by bureaucratic diktat that is undemocratic and unconstitutional. This is not liberty. This is tyranny.

Ron Maxwell is the writer-director of the film “Gettysburg.”

Bruce Fein is the former associate deputy attorney general in President Reagan’s Justice Department.


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