First posted on Ramirez Group’s blog on April 16
By now you have likely heard of the saga of Cliven Bundy, the Nevada rancher who had a big tussle with the federal government over his cattle grazing on federal lands over the weekend.
Whether or not Cliven Bundy is getting a raw deal in some sense is one issue one can easily be ambivalent about. It’s easy to empathize with the fact that his family has been there for over 100 years using the land. Cattle ranching is his family business. Like many stories in politics, there are conflicting interests at play, and the interests with power and money often win. Clark County has in past times opened up some federal land for development in exchange for agreeing to leave other land for endangered species and wilderness areas as part of a mitigation strategy. Cliven Bundy’s cattle are on the latter. A lot could be said about the way the BLM has handled the situation, including the free speech zones and the taser incident.
However, none of that has any bearing on whether or not the federal government has the legal and constitutional authority to regulate federal land by making rules and enforcing those rules. Armed militias have shown up on Bundy’s property to essential obstruct any effort the federal government makes to enforce a court order to remove Bundy’s cattle from the federal land. These militias and Bundy are claiming the federal government doesn’t have constitutional authority to police this land, and it should be under the control of the State of Nevada.
Who owns the land where Cliven Bundy’s cattle graze?
As a matter of fact, history and 150+ years of Supreme Court decisions say the land is the property of the United States. Mexico ceded California and what is present-day Arizona and New Mexico, and parts of Utah, Nevada, and Colorado to the United States in 1848 as part of the Treaty of Guadalupe Hidalgo.
Does all the land within the boundaries of a state become property of that state when the state is created, under the Equal Footing Doctrine?
There is practically no basis for this claim. Bundy has used this claim repeatedly, saying he is willing to pay the grazing fees to the state or county, but not the United States. As it is, the Equal Footing Doctrine should be dubious to originalists, being not only absent from the Constitution, but at the Constitutional Convention, the Committee of Detail purposefully removed such proposed language from the Constitution.
So for you originalists out there, realize the Equal Footing Doctrine was in a way created by “judicial activism” (Lessee of Pollard v. Hagan(1845). If you are using the Equal Footing Doctrine, you must recognize the authority of judicial review, because it isn’t in the Constitution. The irony of that of course is that you’d have to reject all the subsequent decisions made by the Court to continue arguing the Equal Footing Doctrine prohibits Congress from keeping land for the United States as a condition for statehood. Along with other previous cases, in Light v. United State (1911) the Court ruled that federal land in California was indeed owned by the United States much like an individual who owns a farm, and that they have the same rights to retain or sell the land as they please.
Indeed, embodied in the congressional act that admitted Nevada into the Union, and the Nevada Constitution itself is the proviso that Nevada makes no claims to the federal lands within its borders.
Enclave Clause vs. Property Clause
Another argument made by Bundy advocates is that Congress’s powers under the Enclave Clause limits what federal land can be used for to military installations, and acquiring the land requires the consent of the state. The theory further relies on the fact that Nevada didn’t actually consent to give the federal government over 80 percent of the land within its borders; rather Nevada was coerced in violation of the Equal Footing Doctrine. Either way, the Enclave Clause doesn’t apply to territory already owned by the federal government… it concerns only property ceded to the federal government by consent of the state. The federal land in Nevada was never ceded from the state to the federal government, so it cannot fall under the Enclave Clause. Even the strict originalists in the legal academy who are familiar with the history of territory law undertand that these lands would fall under the authority and jurisdiction of 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….”
Article IV, Section 3, Clause 2, U.S. Constitution
The only question becomes what is the scope of authority that the United States derives under the property clause. The language clearly says Congress has the power to make “all needful rules and regulations.” No doubt the opinion of the federal courts has evolved on the issue since the 19th Century. But even in the 19th Century, the Court ruled that federal authority over property of the United States was the same as an individual proprietor. Even if you take what would now be the most restrictive view of the powers inferred by the Property Clause, you would still have to cede that Cliven Bundy’s cattle are trespassing on federal property, and even as an individual proprietor, the United States would have authority to charge Cliven Bundy money to use their land, and kick him off anytime they want. Over the last century the Court has ruled that the police power of the United States under this clause is expansive, and “without limitation.”  Today, the federal government has its own law enforcement to govern its land.
Cliven Bundy’s family has used the land for over 100 years. Doesn’t that give him some rights to it?
There is no rule in law that gives him that right. There is solid case law and an abundance of historical evidence that grazing practices on public land was a privilege and conferred no legal right on the user. This is the equivalent of saying that someone who leases an apartment for over 100 years now has a right to be there against the will of the owner.
In any event, for all this talk about the importance of the Constitution, there seems to be a general lack of understanding and respect for it. One of the central principles in the Constitution is the separation of powers scheme where courts check the powers of Congress and the president. The original Tea Party in Boston was over the fact that they had to pay a tax, but had no representation in Parliament. The revolution was fought to give the Colonies power over their own fate. The founders went to Philadelphia to draft the Constitution to do away with the idea that the states could simply ignore the federal government.
Mr. Bundy has representatives in Congress, and they are the ones who have made these rules and regulations governing the land owned by the United States. Mr. Bundy has been to court multiple times and lost over and over again. There can be no question about the authority delegated in the Constitution to the judicial branch. We have an independent judiciary appointed for life. How can one ever evoke the Constitution and yet ignore it? If one takes the Constitution seriously, one must honor the separation of powers and the independent judiciary’s authority to make rulings on matters of law. The whole reason we went in that direction at our nation’s founding was to avoid settling disputes in the street with weapons.