In a series of bold and highly controversial moves, part of his long goodbye, President Obama has created several new national monuments, chief among them
“Bears Ears” and “Gold Butte.” This action has set off a firestorm of differing opinion but nowhere is addressed the very basic question, from whence springs the constitutional authority for him to take this action?
I asked this question at a gathering of friends while we were bringing in the new year and got the standard round of answers, “settled law,” “antiquities act of 1906,” “Article 4, Section 3, Clause 2 of the Constitution,” even “Article 2, Section 2, Clause 2” concerning treaties.
No one in the discussion mentioned a very basic truth, that any conclusion flowing from a flawed premise is inherently flawed.
The limits on Federal ownership of land is spelled out in the enumerated powers, Article 1, Section 8, Clause 17 of the Constitution. It reads as follows: “To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased by the consent of the Legislation of the State in which the same shall be, for the erection of forts, magazines, arsenals and other useful buildings.”
Volumes, countless millions of words, have been written on the subject of Federal land ownership, both pro and con. The authors cite the very many laws, regulations and even treaties that have been passed or executed in support of the Federal Government’s right to own and control the millions of acres over which they claim jurisdiction yet this entire body of work flows from one flawed premise, that the Constitution of the United States can be altered in any way short of a Constitutional Amendment.
The clause in the enumerated powers section of the Constitution listing the authorized ownership of land by the Federal government is the only place in that document where such ownership is spelled out and cannot be altered by means other than the amendment process.
No legislative action or set of bureaucratic regulations, no Presidential edict or international treaty can alter the Constitution nor can they be deemed to abrogate the rights granted to the individual US citizen under that document.
While treaties are within the power of Congress and the President to enact, and are binding on international law they cannot change the legal foundation within the United States. If such a power did exist it would render our Constitution, or that of any other nation, meaningless.
In my opinion the Federal Government has no right to claim jurisdiction or ownership over any of the so-called Federal Lands but this is a view that should be properly tested in the Supreme Court.
In closing I leave you with the words of Thomas Jefferson; an excerpt from a letter he wrote concerning the Louisiana Purchase:
“When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe & precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the power which that instrument gives. It specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence. Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the Constitution, those powers which time & trial show are still wanting.”
Having taken this position, Jefferson went on to draft and present to Congress a proposed amendment to the enumerated powers which would have permitted the Louisiana Purchase but when Congress delayed he feared that the deal would be lost and acted, by his own admission, without Constitutional authority.
It is my further opinion that all laws and regulations concerning Federal land ownership and jurisdiction are suspect and should be tested in the Supreme court. To do so would take legal action by some State stepping up and suing the Federal government to reclaim those lands within that State’s borders which are claimed by the Federal Government.
Any takers out there?