Wednesday, January 6, 2016

The Bundys, Oregon, Federal Land and the Constitution, Part 2

Norway, Turkey, Egypt, Germany, the Czech Republic -- the equivalent of US land held by the federal government. The 12 far West states' land is on average 58% federally held, while the federal government holds only 4% in other states. This has led to great controversy over land ownership and use in the West. Throughout America’s history, federal laws have kept some land and disposed of some. In the 19th century, laws encouraged settlement of the West by federal land grants. When Texas was annexed in 1845, Congress adopted a resolution allowing it to "retain all the vacant and unappropriated lands lying within its limits." In the 20th century, emphasis shifted to retention of federal lands. In 1976, Congress passed a law saying the federal government would keep all lands it then held. ~~~~~ Some states and supporters say state control of all land would mean less regulation and greater freedom for ranchers, miners, and recreationists, boosting state income. Critics say states don't have funds to maintain the land and would sell it off to private interests, cutting off public access. Utah and Idaho legislatures tried to legally take back federal land. But, the Idaho Attorney General said the state's constitution gave up claims to the land when Idaho joined the Union. Of course, Congress has the authority to turn over federal land to the states, but efforts to pass such a law have failed so far. ~~~~~ Federal lands are lands in the US whose ownership is claimed by the federal government under Article IV, section 3, clause 2 of the Constitution, called the Property Clause : "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States...." The Supreme Court has upheld the broad federal powers to deal with federal lands. The key unanimous decision in Kleppe v. New Mexico held that "the complete power that Congress has over federal lands under this clause necessarily includes the power to regulate and protect wildlife living there, state law notwithstanding." ~~~~~ The basic question remains : how are federal lands created. The Constitution provides for federal ownership of territories that can become states, but also of areas held by the federal government under agreement with the state where the area is -- called the "Enclave Clause" (Article I, Section 8, Clause 17). The Enclave Clause says the federal government can have an enclave - an area surrounded by land owned by states, as Washington, DC - in which federal, not state, law prevails. But, enclaves may be held only for enumerated purposes -- under the Constitution's fundamental doctrine that only listed powers are granted to the federal government, with all other powers reserved to the states. State consent to the creation of an enclave is required and the federal government may be made to honor terms and conditions. The Enclave Clause was 'sold' to the 18th-century ratifying voters on the basis that enclaves would be small. Holding huge tracts of undeveloped land (like Yosemite National Park, 750,000 acres) as enclaves is not what the Founders envisioned. Therefore logically, states-rights legal scholars say non-enclave land held by the federal government under the Article IV Property Clause is also to be held only for enumerated purposes. Grazing, for example, is not an enumerated purpose. Non-enclave federal property within states is therefore subject to state law. Contrary to Supreme Court decisions, when the federal government owns non-enclave land, it should be treated as any other owner, as long as the state respects legitimate federal functions. ~~~~~ Dear readers, that's the Bundy standoff, raised to its constitutional level -- under the Constitution's states rights doctrine, states own most of the 28% of US land held by the federal government. The Bundys support the doctrine. The Justice Department hasn't litigated, as with Cliven Bundy. The FBI hasn't raided the Oregon building to arrest the Bundys -- a states rights standoff, like many political issues today.

3 comments:

  1. If we can’t admit (because we certainly recognize it when 52% of the people believe he is doing an unsatisfactory job) that Obama is both mentally and morally incompetent to perform the duties of the Office of the Presidency … my question is then do we simply not deserve that which our Founders put in place for us? Do we really need a rebellion against the raging bull we call the Federal Government?

    We still do have the power of the vote on the citizens side and a voters rebellion would be spectacular.

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  2. It is highly unlikely that the largess of the federal government will return to the role that was originally intended. Ayn Rand once noted that it took over 100 years for the federal government to get as large as it has, and reversing the trend would also take as long a time. However, conservatives must argue the necessity of reducing the size and scope of the federal government and restoring power back to the states.

    Obviously, the first goal of conservatives is to continue to elect candidates that have the power to stop the trend of an ever-increasing federal government. The 2010 election cycle was a start, but many more strong state-rights advocates are needed to effect real change. Additionally, there is a new movement that would give states the ability to over-ride federal laws if a certain majority signed on. Senator Mike Enzi (R-Wyoming) offered a constitutional amendment that would do just that. This would also provide a fair check-and-balance with a federal government that often claims authority where it constitutionally should have none.

    Damaging change comes all too quickly, whereas change that reverses mistakes is a long and arduous venture taken up by few.

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  3. Most issues today are really about “states’ rights” as Casey Pop says. Then why are we continually lining up on both sides of the ball as conservative-v-liberals. This is about our Constitution. This is about being governed as resident of a particular state, not as a larger completely diverse group. What is good for new York certainly has little to no bearing on Montana, etc.

    The founders had a fear of an ever growing federal government and built in safe guards to prevent just that. And today States are very willing to allow the feds to creep into states’ rights with NO impediment at all.

    If the states could line up behind their constitutional rights, assume their dutiful responsibilities, the Bundy’s and all the rest of us would be so much better off.

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