Endangered Species Act and the Constitution

When we talk about Constitutional issues in relation to the Act, we are really asking is there a likelihood that it is unconstitutional in part or as applied to particular situations? The first risk is that some parts of it will be held to have been beyond the power of Congress to enact because they are not permissible exercises of the Interstate Commerce power. The second issue is the application of the Act to certain tracts of private property in a manner that would deprive that property of all beneficial use and constitute a taking of property. The third is that the mitigation demanded by the government as a condition for being allowed to take endangered species will exceed the power of government to demand because of a lack of a nexus in rough proportionality-- two tests that the Supreme Court has come up with in recent years.