Expert Ill-Informed

Advertisement

Editor:

An article in a Sunday Arizona Republic titled, Gosar, Grijalva on opposite sides of the fence, about the Bundy family grazing cattle on federal lands in defiance of the bureau of Land Management quotes a putative “expert” on public-land policy, Michael Blumm, as saying, “The law is fairly clear: The federal government has the Constitutional power to own and to manage its lands.”

Where does the United States Constitution delegate that general power to the federal government?

The Constitution authorizes the federal government to own and manage land ceded to it for a seat of government (Washington, D.C.) and to own and manage land purchased with the Consent of a State Legislature “for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings”. Period. Nothing is said about huge percentages of the Western states being owned and managed by the federal government for which it pays the states a pitiful PILT (Payment In Lieu of Taxes).

The 10th Amendment prohibits the federal government from doing anything for which the power is not delegated to the federal government. If “numerous Courts” have shot down claims that the States should gain control of federal lands, as Blumm claims, then this proves that numerous federal court judges are incompetent as to the U.S. Constitution, a suspicion I have long held.

Donald L. Cline

Comments

Ted Paulk 6 months ago

Good Lord!! Does Donald Cline own part of the Roundup or doe he have pictures of someone doing something incriminating? This guy is a total nut case and yet he keeps getting published EVERY WEEK. what the hell is going on????

0

Donald Cline 6 months ago

No, Ted. I get published quite often because I make sense and I speak the truth; what I argue is documented and can be verified by anyone with the desire to do so. Unlike certain others I am too polite to mention by name.

2

Ron Paludan 5 months, 3 weeks ago

Expert? This letter sites one portion of the Constitution that applies to Federal land in D.C. and assumes that it applies to all federal land. Read further:

Article IV, Section 3, Clause 2, U.S. Constitution

"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."

The Supreme Court has consistently recognized the expansiveness of this power, stating that “the power over the public land thus entrusted to Congress is without limitations.”  (Kleppe v. New Mexico). And this was not a fringe ruling by a slim majority of "Activist" Justices. It was a unanamous decision. There are many other applicatble cases. Bundy had his day in court and, quite correctly, they rejected the same arguments that have been raised many times before.

If we accept this rather absurd notion that outside of ten square miles for Federal holdings are limited to only "Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings", then All of our National Parks, Monuments, Battlefield parks and Cemeteries would likely be in private hands. Yosemite and the Grand Canyon would probably be reservoirs, Yellowstone, a private invitation only hunting preserve and Clive Bundy could graze his cows in Arlington National Cemetery.

I can't say that the Federal government always makes the best use of the land it controls, but lets not excuse lawlessness based on discredited crackpot legal views promoted by people who seek to privatize our national heritage.

0

Donald Cline 5 months, 3 weeks ago

Wow. The United States government violates its charter almost from the git-go, and you automatically assume that requiring it to obey its charter is a "discredited crackpot legal view"?

Sorry, Ron -- check that; I'm not sorry -- but your statement above, inferring that because government does it, it is legal, is a most thoroughly discredited crackpot legal view. Can you read plain English, Ron? Do you have a copy of the U.S. Constitution within reach, or do you regard that document as a "crackpot legal document" you wouldn't have in your house?

If you have one, Ron, I commend to your consideration the Tenth Amendment (among others, but we'll get to them later in the discussion), where it says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In case you don't understand those simple words, Ron, it says the federal government doesn't have any authority not delegated to it. It doesn't matter whether you "accept" or think it "absurd" that the federal government holdings are limited to "Forts, magazines, Arsenals, dock-Yards, and other needful Buildings" outside of the seat of government or not, Ron, because that is the supreme Law of the Land and you have nothing to say about it.

If you read the U.S. Constitution and can understand plain English, Ron, you will find that it is the federal government engaging in lawlessness all over the country, not those people standing up and opposing the federal government's insurrection against the U.S. Constitution that created it.

1

Ron Paludan 5 months, 3 weeks ago

Donald, I don’t think either of us have difficulty understanding “Plain English”, but unfortunately you make a very selective reading of the Constitution, legal history and the law. The Constitution is not a “Crackpot legal document”, but it is you interpretation of it that is a fringe view, not supported by the wording and over two-hundred years court decisions reject your position.

Since Article 4, Section 3 gives the Federal Government the power to regulate it’s property, it can do so without violating the Constitution - it is a delegated power. Again, this interpretation has been repeatedly upheld by the highest court and supported by Justices from every part of the political spectrum, liberal, moderate and conservative.

I do not imply that “Because the government does it , it’s legal”. I prove that it is legal and that claims that the Federal Government does not have the power to own and regulate land are invalid based on a long history Constitutional law and history.

You question my English reading skills, but have trouble construction a coherent rebuttal to any of my arguments:

  1. That the portion of Article I that you site applies specifically to the District of Columbia. You have no response, and cannot site a single example of case law or precedent to support your claim that it would apply to all Federal property.

  2. Article IV, Section 3, Clause 2, specifically provides “power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”. It seems that you stopped reading at Article I and skipped to the Tenth Amendment and ignored everything in between. Your response does not address this rather important detail, but I assume that you have a copy where these pages are not missing.

  3. The courts, and in particular a unanimous decision by the Supreme Court ,have held that Article IV does give the Federal Government the power to own public lands and to regulate them. I will add here, that there are numerous other cases that have challenged that power using the very same objections that you have raised. Every single one of these arguments has been universally rejected. For additional education beyond Kleppe v. New Mexico, I recommend studying United States v. Gardner: http://caselaw.findlaw.com/us-9th-circuit/1061959.html

  4. On my point that we would have none of the National Parks, Monuments, Memorials or National Cemeteries that we treasure today if this unsupportable interpretation were ever upheld. I assume that would be okay with you. But outside of a very extreme minority, I doubt you would find much agreement. Fortunately, Every President since at least the Civil War, every major Supreme Court ruling on the subject and Congress have recognized that national lands are legal under the Constitution and a tremendous benefit to the country.

0

Donald Cline 5 months, 3 weeks ago

Very rational response, Paul, and correct as long as you ignore the question of whether the federal government has the lawful power to own the property or not in the first place, and the question of whether the Supreme Court or any other Court has the lawful authority to rule in a manner not pursuant to the Constitution of the United States. You are arguing a different issue entirely than I am arguing, and it is for this reason that you claim my "theory" (it's not theory; it is fact written in plain English) is a crackpot theory.

First, the Supreme Court has no authority to rule in any manner not pursuant to the plain English reading of the U.S. Constitution, though it has illegally done so hundreds of times, particularly during the period the "Roosevelt-packed Supreme Court" endured. I mean, for crying out loud, Ron; as late as 1942 the Supremes ruled the government had the authority to tell a private citizen he couldn't grow wheat for his own consumption because the fact that he DID NOT put it on the market had an effect on interstate commerce. It is cited as "Wickard v Filburn, 317 U.S. 111 (1942), and it has never been overturned. The Marxist Mafia infesting our federal government has used that ruling ever since to proclaim that the "Commerce Clause" authorizes the federal government to legislate in all matters whatever, just as the American colonists complained of King George.

The Supreme Court cannot lawfully rule other than in pursuance to the U.S. Constitution, and in one of its more lucid moments, it said so: “All laws which are repugnant to the Constitution are null and void.” (and other comments relating to the limitations of its own authority.) Marbury v. Madison, 5 U.S. 137 (1803).

You have no quarrel from me that government has the exclusive “power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”. That is not at issue. What is at issue is whether the federal government has the authority to own property other than as defined in Article I Section 8 Clause 17. The Tenth Amendment says it does not. And regardless of what various and sundry bogus court rulings have said, the founding fathers themselves are on record repeatedly asserting that the federal government has no authority not delegated to it by the Constitution of the United States.

Put simply, if the federal government has no authority to own land devoid of Forts, Magazines, Arsenals, dock-Yards, and needful Buildings (and not the seat of government) then it has no authority under Article IV Section 3 Clause 2 to govern that land. And you might want to read the rest of Art. IV Sec. 3 Cl. 2: "... and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

1

Donald Cline 5 months, 3 weeks ago

Part 2 (Part 1 may be below):

For your information, I have reviewed http://caselaw.findlaw.com/us-9th-circuit/1061959.html and find that it is typical of so many rulings in which the Court was asked the wrong question based on the wrong premise and gave the wrong answer. In one unfortunate sense, the Supreme Court is like a computer: Garbage in, garbage out. The controversy in Gardner was not a Constitutional issue and the Constitutional issue was never raised. In fact, Gardner could be challenged on judicial error in that ruling because the Court admits in its ruling that the only way the federal government can hold land (presumably other than pursuant to Art. I Sec. 8 Cl. 17 though this is not specified) is for the purpose of holding it in trust for future States. Nevada was not a State at the time of the Gardner controversy; therefore the Gardner argument didn't apply. Then the Court admitted that Nevada then BECAME a State, and the Court rules the federal government could maintain ownership of the land beyond that date even though it had just finished saying that all federal ownership and control had to cease upon a State being established!

Incredible incompetence, Ron. Don't put your faith in the judiciary; they have been duplicitous for political reasons, or generally incompetent, almost since Day One. The United States Constitution is the bottom line, not the Courts, not the Executive, and certainly not Congress.

The fact (if it is a fact in every case) that all three branches of government have agreed to a violation of the fundamental limits of government authority is not proof of the validity of that violation; it is proof of the corruption, incompetence, and political ambition of all three branches. FWIW, I support your assertion that the National Parks, Monuments, Memorials and National Cemeteries are treasures that should be maintained, but the Constitution of the United States and the first nation of liberty in 25 centuries of grinding tyranny and oppression that it created is a greater treasure and it is being systematically destroyed by organized political corruption in direct violation of our founding documents. There is no reason the several States cannot preserve those natural and patriotic treasures better than the federal government can, especially when they are the first things to be shut down whenever there is a budget argument in the federal government.

Moreover, and this is more important than any other argument: The States have the lawful power to maintain them. The federal government does not.

1

Donald Cline 5 months, 3 weeks ago

Sorry I called you "Paul." I meant to call you "Ron."

0

Ron Paludan 5 months, 3 weeks ago

Donald, I appreciate that you took the time to post a rather comprehensive response. Did not get online until late today, so I hope you will not object if I do not respond with a hasty post. Perhaps tomorrow time permitting.

0

Ron Paludan 5 months, 3 weeks ago

Who gets to decide when there is a dispute over the meaning of the wording of the Constitution? You? Here's the reality: No human language, English included, is so precise that there can never be disagreement over the meaning of every phrase - there will be cases of multiple interpretations. The courts are there to settle these arguments, and provide a far superior solution to disputes than which side has the better sniper positions and heaviest artillery.

Rulings that were contrary to your arguments go back long before FDR and long after. Even the most conservative, "Strict Constructionist" justices have ruled in favor of the Federal government's right to own and regulate it's property.

Art I Sec 8 Cl 17. You are overlooking the first part: "The Constitution authorizes the federal government to own and manage land ceded to it for a seat of government (DC)...". This does not exclude property outside of DC since that power is delegated in elsewhere.

US v Gardner. You state: "The controversy in Gardner was not a Constitutional issue and the Constitutional issue was never raised." There were several Constitutional issues raised by Gardner (See parts III & IV). The court‘s finding: "Thus, as the United States has held title to the unappropriated public lands in Nevada since Mexico ceded the land to the United States in 1848, the land is the property of the United States. The United States Constitution provides in the Property Clause that Congress has the power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” U.S. Const. art. IV, §3, cl. 2."

"Gardners argue that federal ownership of the public lands in Nevada is unconstitutional under the Tenth Amendment.". The court ruled that "Federal ownership of the public lands within a state does not completely divest the state from the ability to exercise its own sovereignty over that land. The state government and the federal government exercise concurrent jurisdiction over the land. In Kleppe v. New Mexico, the Supreme Court held that the Wild Free-roaming Horses and Burros Act was not an impermissible intrusion on the sovereignty of New Mexico.

You also claim "Nevada was not a State at the time of the Gardner controversy; therefore the Gardner argument didn't apply." Look carefully. 1) The United States v Gardner ruling was in 1997. Nevada Became a state in 1864. 2) Contrary to your statement, the court ruled: "The United States, then, was not required to hold the public lands in Nevada in trust for the establishment of future states. Rather, under the Property Clause, the United States can administer its federal lands any way it chooses, including the establishment of a national forest reserve."

Perhaps Mr. Bundy will attempt your arguments it in future litigation. Most of us would find it difficult to find sympathy for lawyers, but that might be an exception.

0

Donald Cline 5 months, 3 weeks ago

I have consistently found, when debating political issues with liberals, that it is prudent to apply what I call the "Inigo Montoya rule" as he (played by Mandy Patinkin") said in the movie The Princess Bride: "You keep using that word. I don' tink it means what you tink it means." :)

0

Diane Green 5 months, 3 weeks ago

Why should anyone pay attention to the wild legal opinions offered by Don Cline, let alone research intelligent responses to his nonsense? Is he a constitutional attorney? He states, "The United States Constitution is the bottom line, not the Courts, not the Executive, and certainly not Congress." I would add, certainly not Donald Cline.

0

Ron Paludan 5 months, 3 weeks ago

To be clear the cartoonist is Randall Munroe. Apparently the forum software puts the uploader's name under the image. What XKCD lacks in artistry, it more than compensates with humor.

0

Requires free registration

Posting comments requires a free account and verification.