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Cliven Bundy has opened up a rabbit hole that goes back at least 200 years. There’s a lot of history surrounding Federal management of land, grazing rights, and Washington D.C.’s power to enforce its will upon states and citizens. Unfortunately, there’s also a lot of ignorance of this history flying around the internet. Going back to the old saw “if it’s online, it must be true,” people can be whipped up into a frenzy, grab the AR-15’s and head out to Nevada to fight against the Big Bad government.
What we need to know is that the United States has a rich legal history of owning, managing, and disposing land.
In black and white, the Congress has Constitutional authority to regulate land owned by the United States. But there are limits to this power. Once a state has been admitted to the Union, it becomes a constitutional government in its own right, and thereby has the right to regulate land that, prior to admission, belonged to the United States (the Admitting Act of a State governs this transition).
The Supreme Court, in Camfield v. United States, in 1897, ruled that the Congress can regulate access to public land, by preventing private landowners from placing fences limiting access to that land.
Nevada is a state of course, and in fact the United States owns over 76% of it. Put into perspective, that would be like the Federal government owning Florida from Lake City south to Key West.
Congress’ legal authority and power to own, control, regulate and dispose of this land sits between two legal poles: the proprietary theory and the police-power theory.
The proprietary theory grants Congress the same rights as any other private landowner, and the Supreme Court has long rejected that view based on the United States having vested national interests that override state legislation. The police-power theory gives the Federal government almost unlimited authority to enforce its ownership rights, through regulation and legislation. In fact, the Supreme Court held in 1976 that Congress has significant power to regulate public land and its use by private individuals.
At issue was the constitutionality of the Wild, Free-Roaming Horses and Burros Act, which prohibits capturing, killing, or harassing wild horses and burros that range on public lands. Writing for the Court, Justice Thurgood Marshall specifically rejected the contention 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, without regard to 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. [Emphasis mine]
The Bureau of Land Management is the primary “property manager” for the United States. It obtains its authority directly from the Constitution, and in fact, prior to that, the Articles of Confederation. There has been an unbroken chain of Federal management of public lands since the founding of our country, first by the Treasury Department, then the War Department, followed by the General Land Office, and more recently, the BLM.
In the case of Bundy, the odds and the law are most definitely stacked against him. What we must consider, as policy, is how the Federal government manages its considerable land holdings. Remember, Constitutional authority to own, dispose and regulate land is vested in the Congress, not the Executive Branch. Our Congress, throughout the years, has ceded regulatory authority to an ever-growing bureaucracy of departments, agencies, bureaus, and offices, each with its own (and some overlapping) fiefdom. This effectively emasculates Congress’ power and allows the President and his administration to order, by fiat, which land is protected, which land is designated, and even seize land under present laws protecting wildlife, the environment, historical sites, and Native American rights, not to mention lands designated for the armed forces.
The Obama administration is extremely skilled at pulling the strings of bureaucracy to gain its own ends. He With A Pen And A Phone chooses his battles well, under cover and color of law. The reason to side with Bundy is not because he is a righteous man, but because this conflict has been going on since 1993, and all previous administrations have simply pursued it as a money matter in paying for grazing rights. Only Obama has taken the extra step of enforcing police-power in physical form. I, for one, don’t like the precedent. It’s a use of force that is unnecessary, irresponsible, inflammatory, and, ultimately, useless.
There’s more to this story that meets the eye, but we must not cross the line from patriots to anarchists. It’s good that BLM “de-escalated” but I fear this is not the end of the conflict. As Rahm Emanuel (channeling Saul Ailinsky) was heard saying “never let a crisis go to waste.” This one should be used to expose the corruption in the system, not create a reason for further hay-making about “gun-toting, flag-wrapped, neo-conservative extremists.”
That is the sane approach.