Biden Is Rolling Back Trump Rules on Migratory Birds. Here’s Why That’s Important.

There’s lots of news coming out each day about how Joe Biden’s administration is trying to fix a lot of the things Donald Trump broke. And as you know, Trump broke a lot of things, especially regulations and rules designed to protect the environment and threatened species. If it was the kind of thing a cartoon villain on Captain Planet would do, Trump tried it. One such move was minimizing the protections for migratory birds. And I know that sounds like something that, well, for the birds, but I’d like to explain to you why migratory birds are maybe more important to the world and the US than you might think.

First, let’s talk about what the Biden administration did this week: they proposed a new rule that will undo a Trump rollback of protections for migratory birds. The original Trump rule would have removed penalties for private companies that kill migratory birds, either accidentally or incidentally. Trump’s rule only went into effect yesterday, and now Biden is undoing that. They’re also rescinding a 2017 legal opinion backing up the idea that this is allowed under the Migratory Bird Treaty Act. This opinion had already been questioned by the courts.

Okay, so, that’s the nitty-gritty. But why do we care? Well, for one, the protection of certain species has long been a vehicle for environmental protection in the face of expanding industry. Think about how protecting snowy owl habitat has halted deforestation, for instance. In 2001, the Supreme Court struck down a rule that allowed for limits on pollution to protect birds, but it still matters and the tactic is still important in the fight for the environment. In short, the Federal Government retains the power to enact rules and regulations that protect (or hurt) the environment because of birds.

But there’s more to this. Much of the tension between “small government” Republicans and pro-environment democrats comes from the idea of states’ rights. For almost the entire history of the United States, there has been tension regarding how much the Federal government can interfere with states and tell them what to do. There are entire courses devoted to constitutional law all about this issue. When it comes to things like interstate commerce or spending, the feds can do what they want, but one of the lesser-known ways that the Federal Government can tell states what to do is through the treaty power. And the treaty that’s based on? The Migratory Bird Act.

In 1918 in the case of Missouri vs. Holland, the Supreme Court held that treaties were constitutionally above laws and that if it was in the national interest, the federal government could enter into treaties that regulated things usually delegated to the states, in this case, game hunting and the treatment of migratory birds. That seems small, but the implications of that are very far-reaching.

Thanks to migratory birds, the treaty power is incredibly important and it’s one of the big reasons that Conservatives are terrified of the United Nations and why the US seems scared to enter into certain international treaties. Because it means, for instance, that if the United States were to ratify the United Nations Convention on the Rights of the Child which expresses that corporal punishment is bad (we’re the only country in the world that hasn’t), they could use the treaty power to make spanking a child a crime. That’s just one example, but on other issues like say, the Paris Climate Agreement or international arms regulation, the US could conceivably use the treaty power as an end-run around not just the states, but potentially Congress as well.

And that’s why, along with just hating the natural world, that I think the Trump administration was so vehemently against the Migratory Bird Act. Because someone in the know understood that it mattered way more than just protecting birds. So does the Biden administration, which is why turning around these rules and strengthening the Migratory Bird Treaty Act is a pretty good feather in their cap.

(via: The Hill, image: Pexels)

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