Hello Prawfs. Nice to be back, and thanks to all.
While in Nevada last week, Ben Carson took the opportunity to play to the western conservative crowd. In a televised interview with the Las Vegas Review Journal, he argued that the federal government should “return” much publicly held land to the states, highlighting a controversy Cliven Bundy brought back into the national spotlight in 2014. Bundy and others point to the federal government’s substantial land ownership in western states (more than 80% of Nevada) as compelling evidence of Washington’s continuing efforts to trample on states’ rights, and they promise to make this newest incarnation of the Sagebrush Rebellion a divisive issue in the 2016 election—at least in western swing states.
In fact, the last year has seen a number of state legislatures, including Nevada’s, entertain bills that simply assert state ownership of these federal lands. Despite their obvious constitutional defects, these bills have recurred in various forms for years, and their proponents fervently believe that the Constitution is actually on their side. Carson, for his part, was not afraid to let the facts get in the way of scoring political points—he claimed, for example, that the federal government owns 2.4 billion acres of land, which is more than makes up the entire country—and much of the land he would have “returned” never belonged to the states in the first place. A little historical and constitutional context makes it clear that Bundy and his supporters have the law wrong, too.
Congress began acquiring large tracts of land when the original 13 states started to cede their claims to the western territories. This acquisition continued through purchases (like Louisiana) and treaties (like that which ended the Mexican-American War), the latter of which actually accounts for much of the land currently held in Nevada. In the early going, Congress disposed of these lands into private and state hands fairly generously, with the hope of encouraging westward colonization—but always with the understanding that this disposition was a federal prerogative, per the express language of the Property Clause. Indeed, as a condition of statehood, many western states were made to adopt constitutional provisions like Nevada’s, which “forever disclaim[s] all right and title to the unappropriated public lands lying within said territory, [which] shall be and remain at the sole and entire disposition of the United States.” This was done, at least in part, to clear title to disputed land claims, again, to encourage westward migration.
Notwithstanding all of this plain language, the New Riders of the Sagebrush Rebellion claim that both federal landholding and these “disclaimer clauses” violate the recently reinvigorated “equal footing doctrine,” which the Court has said promises each state equal “constitutional right and power” upon admission to the Union. They claim that, because Congress liberally handed over its land to new states in the early years, it was bound to do the same in later years when admitting the western states. There is, of course, a fundamental problem with this argument: The early states never enjoyed a “constitutional right and power” over federal lands to which the later states might lay equal claim. Land disposition was always a constitutional power reserved to the federal government, as the Supreme Court made clear in Ashwander v. Tennessee Valley Authority.
Nonetheless, we can expect to hear much more about the pervasive federal overlordship of public lands in the west as the election draws closer. The issue is tailor made for Tea Party type rhetoric about the oppressive central state, the put-upon rancher (as quintessential rugged individualists), and the meddling evil of liberal conservationists (who largely support federal land management to avoid states racing to the bottom). I can’t wait to see Marco Rubio in a cowboy hat.
Posted by Ian Bartrum on December 2, 2015 at 01:46 PM
Comments
What are we to make of the fact that Bundy still roams free not having paid what he owes the rest of us? Threaten to kill federal employees and you can ignore the law?
Posted by: Brad | Dec 2, 2015 3:10:46 PM