Obama's Political Error in Supporting Hillary, His Twilight Federal Land Grab, and the Trump Supreme Court

On the final Friday in 2106, it is time to look at the final days of the Obama presidency as President-Elect Donald Trump prepares to take over. • • • OBAMA AND HILLARY. Perhaps the greatest political error Barack Obama made in his eight years came late -- when he could not or would not stop Hillary Clinton from becoming the Democrat candidate for President. His earlier political aloofness and indecisiveness had already separated him from Democrat Washington politicos and when 2015 rolled around, perhaps he thought his best hope of retaining his "legacy" was to entrust it to the hands of the Clintons. Wrong, as usual. • As best we can piece together the Barack-Hillary detente, she used it to lie to him about putting all her communication on a private unsecured email server located at her Chappaqua home. The kindest interpretation of the facts is that he realized this after it happened and went along with it -- was he afraid of what he had already passed on to Hillary by email or was he simply so used to lying his way out of trouble that he thought denying that he knew about the server would be sufficient this time, too? We still do not have that answer, but we know that, legally, from the moment he knew about Hillary's server, he was in violation of his responsibilities to safeguard classified information. • And, on Tuesday, December 27, there was a new legal development on former Secretary of State Hillary Clinton's emails that could come back to hit Obama. An appeals court reversed a lower court ruling and said two US government agencies should have done more to recover the emails. The ruling from Judge Stephen Williams, of the US Court of Appeals for the District of Columbia Circuit, revives one of a number of legal challenges involving Clinton's handling of government emails when she was Secretary of State from 2009 to 2013 -- the challenge that she handed over 55,000 emails to US officials, but did not release about 30,000 she said were personal and not work related, as she should have. The email case damaged Clinton -- remember Trump's "Crooked Hillary" during the campaign. Trump, who repeatedly said during the campaign that if elected he would prosecute Clinton, said after the election he had no interest in pursuing investigations into Clinton's email use, although others could pursue it. Well, on Tuesday, Judge Williams decided to pursue the case. He found that while the State Department and National Archives took steps to recover the emails from Clinton's tenure, they did not ask the US Attorney General to take enforcement action. A district judge last January ruled the suits brought by Judicial Watch and Cause of Action moot, saying State and the National Archives made a "sustained effort" to recover and preserve Clinton's records. But Judge Williams said the two agencies should have done more. Since the agencies neither asked the Attorney General for help nor showed that such enforcement action could not uncover new emails, the case was not moot : "The Department has not explained why shaking the tree harder -- e.g., by following the statutory mandate to seek action by the Attorney General -- might not bear more still. Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot." Judge Williams noted that Clinton used two nongovernmental email accounts at State and continued using the Blackberry account she had while a US Senator during her first weeks as the nation's US diplomat. She only switched to the email account hosted on her private server in March 2009, the ruling said : "Because the complaints sought recovery of emails from all of the former Secretary's accounts, the FBI's recovery of a server that hosted only one account does not moot the suits. • Barack Obama's political decision that Hillary would be the best protector of his legacy may yet prove to be the worst political decision he ever made, because his connivance in and defense of Hillary's email scheme may yet provide evidence that he jeopardized US intelligence -- not a good "legacy," by any standard. • OBAMA REFUSES TO GO QUIETLY. President Obama admits he was in tears during a farewell dinner with his senior staff. "I got through about four minutes of the thing and then started to get my hanky out," Obama told former aide David Axelrod during a podcast interview. • Okay, that's not news. But, in the interview with Axelrod, Obama said that had he been able to seek a third term, he is confident he would have been reelected. Obama said : "I am confident in this vision because I'm confident that if I had run again and articulated it, I think I could've mobilized a majority of the American people to rally behind it. I know that in conversations that I've had with people around the country, even some people who disagreed with me, they would say, 'The vision, the direction that you point towards is the right one.' " Beyond being a poster for Obama over-arching but undeserved pride, that statement surely is his own admission that he backed the wrong Democrat horse in 2106. And, he told Axelrod that he didn't discount the possibility of speaking out on issues at some point : "At a certain point, you make room for new voice and fresh legs. That doesn't mean that if a year-and-a-half from now, or two years from now, there is an issue of such moment, such import, that isn't just a debate about a particular tax bill or a particular policy, but goes to some foundational issues about our democracy that I might now weigh in. You know, I'm still a citizen and that carries with it duties and obligations." If only Obama had been as conscientious a citizen during the past eight yeqrs. But, what conservatives and Republicans are warning Trump about is that Obama is staying in Washington and will 'make trouble' for President Trump and his agenda at every possible opportunity. • So, it seems that Obama -- unable to drive through his agenda traditionally with Congress and the American people during his eight years in office -- will linger on in Washington to try to make sure that Trump does not get the opportunity America wants him to have to straighten out the disasters of Obama's presidency. • • • OBAMA'S TWILIGHT FEDERAL LAND GRAB. The Obama twilight is not pretty. There are no rosy wilderness sunsets. Instead, Obama is pulling every string at his disposal to make life difficult for President Trump. • The best example of this spiteful attitude of President Obama's move to protect two massive areas in the American West on Wednesday, including a swath of southern Utah that has been at the center of a contentious battle over land protections for years. The areas newly protected from development and various activities are the Bears Ears National Monument in Utah and the Gold Butte National Monument in Nevada. Both areas are owned by the federal Bureau of Land Management. The actions further cement the aggressive conservation legacy of Obama, who has protected more land and water than any other President under the Antiquities Act. But, these two final designations are among the most controversial under Obama, with strong opposition among local and state leaders. Obama said in a statement that the designations : “protect some of our country’s most important cultural treasures, including abundant rock art, archeological sites, and lands considered sacred by Native American tribes. Today’s actions will help protect this cultural legacy and will ensure that future generations are able to enjoy and appreciate these scenic and historic landscapes.” • Obama's designations, using his unilateral authority under the Antiquities Act, acting with just about three weeks left before President-Elect Trump takes office, have outraged the State of Utah. Utah’s attorney general says he is preparing a lawsuit against President Obama for his decision to designate a new national monument in the state. Attorney General Sean Reyes on Wednesday said the lawsuit is one of numerous ways that he, Governor Gary Herbert, and the state’s congressional delegation will fight the designation of the 1.35-million acre Bears Ears National Monument. Reyes admitted that previous attempts to sue over national monuments have failed, because the courts have upheld presidential power to protect federal land as monuments unilaterally under the Antiquities Act. But, Reyes said : “My office is working closely with the governor’s office, federal and state legislators, and San Juan County to file a lawsuit challenging this egregious overreach by the Obama administration. This case is different from other past challenges by states and counties and we are confident in our chances of success. But the courtroom is not our only option. Our federal delegation is working hard to defund the designation or rescind it altogether. Additionally, we look forward to working with the new presidential administration on ways to curtail or otherwise address the designation.” • All Utah’s statewide leaders and congressional delegation oppose the Bears Ears monument, saying it unnecessarily restricts land uses like fossil fuel production. They want Congress to enact less restrictive protections for the land. But, the real issue here is the continuing federal land grab in the western United States. The federal government owns 640 million acres of land (about 28%) of the 2.27 billion acres of land in the US. BUT, 52% of federally owned acres are in 12 Western states. In contrast, the federal government owns 4% of land in the other 38 states. AND, the federal government owns or controls 70% of the state of Utah. • It isn't clear if Trump could unilaterally undo Obama’s designations, because it has never been tried before. Some Republicans, including House Natural Resources Committee Chairman Rob Bishop of Utah, say it is within Trump’s power, though the Obama administration says the Antiquities Act does not allow monument designations to be undone. One thing the Obama Twilight Land Grab, coupled with his prior aggressive use of the Antiquities Act, could do is lead Congress to refuse funding for these two monuments or to limit future Presidents’ powers. • The 1.35 million-acre Bears Ears area could be the most controversial of Obama's dozens of national monuments, in part because it shuts down any new leases for mining or oil and natural gas, exploration, along with other development and potential harms, even though it protects numerous sites that are significant to nearby American Indian tribes, including the Navaho Nation, for cultural, religious and historic reasons. The Nevada monument is also controversial, for different reasons. The Gold Butte area is next to the ranch of Cliven Bundy and the site of an armed standoff between federal authorities and self-styled militia members in 2014. Bundy family members were also involved in the Oregon federal land stand-off early in 2016. Both confrontations are part of the ongoing western landowner/user challenge to the federal closure of open range grazing lands. The Nevada monument, pushed by outgoing Senate Minority Leader Harry Reid of Nevada, protects numerous tribal sites, important landscapes, rare fossils and more. But, the federal government already owns or controls 80% of Nevada. • One argument the Utah lawsuit may make is that the Constitution's Article IV, Clause 2 : Property Clause can be construed to disallow excessive federal ownership of state lands. The Property Clause states : "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; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State." It grants Congress the constitutional authority to manage and control all territories or other property owned by United States. Additionally, the clause also states that nothing contained within the Constitution may be interpreted to harm (prejudice) any claim of the United States, or of any particular State. The exact scope of this clause has long been a matter of debate. • The Framers' debates at the Constitutional Convention and the ratification process have little to say about the Property Clause. A clue is provided by the very carefully organized structure of the Constitution. Article I sets forth the enumerated powers of Congress, including a specific grant of power over the governance of federal property. Article I, Section 8, Clause 17, known as the Enclave Clause, is plainly a grant of sovereign authority -- exclusive sovereign authority -- over the District of Columbia and other federal enclaves acquired with the consent of the state in which they are located. So, Article I is the place where we would expect to find a grant of power to Congress to exercise political sovereignty over federal lands. However, Article IV, generally deals with issues of state-to-state relations (full faith and credit, privileges and immunities, extradition, creation of new states, protection of states against invasion), so it would be an odd place for the Framers to have put such a federal power. Moreover, it is inconsistent with the careful drafting of the Constitution to assume that the Framers included two overlapping grants of sovereign political authority over federal lands -- one specifically for agreed Enclaves in Article I and another for federal lands in Article IV. These structural points make it doubtful that a broad political and police-power theory is consistent with the Framers' understanding. • Another key piece of evidence is the Northwest Ordinance, which Congress enacted while still operating under the Articles of Confederation, at the same time that the Constitutional Convention was meeting, but which the First Congress reenacted after the Constitution was ratified. This statute established the territorial government for the land of what is today the states of Ohio, Indiana, Michigan, Illinois, and Wisconsin. James Madison and other leaders at the Convention thought that the Articles of Confederation did not contain an adequate source of power to support the Northwest Ordinance. The Property Clause was designed to remedy that defect. Thus, it seems that the Framers intended the Property Clause to be broad enough to constitutionalize the provisions of the Northwest Ordinance. BUT, the Northwest Ordinance included a number of other provisions respecting the governance of the new territory that would have to be described as pure police-power measures -- clauses preserving the freedom of religion, prohibiting uncompensated takings of property, and outlawing slavery. Other provisions of the Ordinance dealt with the status of federal land after new states were formed from the territory and admitted to the Union. Such states were prospectively prohibited from interfering with the disposal of lands by the United States or with regulations adopted by Congress to secure title to bona fide purchasers, and they were barred from imposing any tax on federal lands. There is no mention of a right by the federal government to take lands inside a state once it was created. Once states were admitted to the Union, Congress could exercise full police powers over federal land located in a state only in accordance with the Enclave Clause -- that means only when the land was acquired with the consent of the state. • A leading nineteenth-century exposition of the constitutional authority of the federal government over federal lands, Fort Leavenworth Railroad Co. v. Lowe (1885), is generally in agreement with this interpretation. There, Justice Stephen J. Field wrote that the authority of the federal government over territories is "necessarily paramount." But once a territory is organized as a state and admitted to the Union on equal footing with other states, the state government assumes general sovereignty over federal lands, and the federal government has the rights only of an "individual proprietor." The federal government can exercise rights of general sovereignty over property only if there has been a formal cession of sovereignty by the state under the Enclave Clause. Justice Field qualified this view of separated sovereignty, however, by noting that if the federal government acquires land outside the Enclave Clause [purchases it from a private owner or the state], any federal forts, buildings, or other installations erected on such land "will be free from any such interference and jurisdiction of the State as would destroy or impair their effective use for the purposes designed." • The Supreme Court's reading of the Property Clause has changed significantly in the past century. In 1911, the Court ruled in Light vs United States that the federal government could reserve vast tracts of land such as national forests, indicating that these lands were held in trust for the people of the whole country, and that it was for Congress, not the courts, to say how that trust should be administered. • In the most recent Supreme Court case, Kleppe v. New Mexico (1976), the Wild, Free-Roaming Horses and Burros Act was held to be constitutional. The Act prohibits capturing, killing, or harassing wild horses and burros that range on public lands. Writing for the Court, Justice Thurgood Marshall specifically rejected the argument that the Property Clause includes only "(1) the power to dispose of and make incidental rules regarding the use of federal property; and (2) the power to protect federal property." He concluded that "Congress exercises the powers both of a proprietor and of a legislature over the public domain. Thus, whether wild animals are the property of the United States or whether the Act could be justified as a form of protection of the public lands, Congress was held to have sufficient power under the Property Clause to adopt regulatory legislation protecting wild animals that enter upon federal lands. • • • DEAR READERS, so far, Congress has not attempted to exploit the new "enumerated power" not mentioned in the Constitution but conferred by the Court in Kleppe v. New Mexico. But, we can see how Kleppe v. New Mexico could be seen by the federal government to open the door to the use of the Property Clause to justify legislation that goes beyond protecting federal proprietary interests in ways that would be inconsistent with the original design of the Constitution -- and enabling the federal land grab in western states to continue. However, it is interesting that all Property Clause cases recvolve around how the federal government may act within federal lands, and not around how those lands are to be seized from a state and made part of federal land to begin with. This could also be fertile ground for Utah's arguments in its Bears Ears monument challenge. • This is just one of the reasons why the election of Donald Trump was so important for the continuation of the constitutional Republic. It has been said that the Supreme Court has not addressed the continuing legislative, executive and judicial expansion of the Property Clause since 1976 because it has not found the right set of facts on which to rule. It may also be that the Court has not been able to find even the beginning of a consensus on how to handle the Property Clause. With Trump's appointment of at least one, and probably two or three, new Justices, that consensus may emerge on the side of the Framers' probable intention concerning the Clause -- that they will finally strike down a broad and questionable expansion of the Property Clause and give more control over federal lands to the respective states. It may even be that the Court will find that the Antiquities Act violates the Constitution's restrictions on the power given by the Constitution to states in the Enclave Clause -- that is, that they must agree to any federal seizure of lands within their state territory. Perhaps, as the Bears Ears monument issue works its way through Congress and the federal courts, we will see one of the first pro-Constitution fruits of the Trump presidency. It could even happen in a Hillary email server case.