Behind the Bundy bluster is there a constitutional leg to stand on?

A sign at the entrance to the Bundy family’s ranch in Bunkerville, Nev. (Ronda Churchill for The Washington Post)

A sign at the entrance to the Bundy family’s ranch in Bunkerville, Nev. (Ronda Churchill for The Washington Post)

Even though he is still in jail, apparently the acquittal in Oregon has emboldened one of the Bundy brothers to bluster.

In a Monday telephone interview from jail Ryan Bundy told The Washington Post that there could be protests if Obama goes ahead with plans to designate the Gold Butte area next to his family’s Bunkerville ranch a national monument, something Sen. Harry Reid has said is all but certain before he and Obama leave office in January.

Ryan Bundy

Ryan Bundy

Bundy — who still faces a February trial in Nevada, along with his father Cliven, three brothers and others, over the armed standoff in 2014 with BLM agents trying to confiscate the family cattle — told the Post, “The government should be scared. They are in the wrong. The land does not belong to the government.”

He warned that, as the Declaration of Independence states, the people have a right to abolish an abusive government.


“The only peaceful resolution to all this is for them to obey the Constitution,” he told the Post. “Read it, understand it, abide by it. There doesn’t have to be violence. None of that has to happen if they would just abide by the Constitution.”

Asked whether violence was justified, Bundy tersely told the paper, “Ask George Washington.”

The Post dismissed his constitutional arguments out of hand, saying:

Repeating an argument common in the West but disputed by most mainstream constitutional scholars, Bundy said the Constitution does not grant the federal government power to own large tracts of land, nor does the president have legal authority to create national monuments. Bundy said that creating the Gold Butte monument would be an abuse of presidential power and a valuation of tourism and endangered species over the economic needs of struggling communities.

Article IV, Section 3 of the Constitution reads: “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 …”

The question is whether Congress has the power to abdicate that power and turn it over to the president, as it did with the Antiquities Act of 1906.

Heritage Foundation essay by a federal judge argues it may not:

Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” writes James Madison in Federalist No. 47, “may justly be pronounced the very definition of tyranny.” While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress. Since the New Deal, the Supreme Court has unfortunately sanctioned ever greater delegations of legislative power to administrative agencies. That the courts have flouted this principle does not mean that Congress can or should ignore this element of constitutional construction.

Still the Supreme Court has upheld the Antiquities Act three times, but on arguments other than constitutionality.

Then there is also the question of whether the Founders intended that the federal government control vast swaths of land in the sovereign states.

James Madison wrote in 1787 that Elbridge Gerry raised concerns during the drafting of the Constitution about giving Congress exclusive power over purchased lands, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Delegate Rufus King moved to add the phrase “by consent of the legislature of the state.” It passed unanimously.

Yet none of the legislatures of the Western states, where the federal government controls so much land, ever consented.

This previously was addressed in 1828, when the Western states of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned to gain control of federal land:

The petition read:

It is of pressing moment that the public lands should become the property of their citizens, with the least delay compatible with the national interest.  The numerous petitions, memorials, and legislative resolutions, heretofore presented from them, evince the lively and anxious concern with which the present state of things impresses them.

If these lands are to be withheld from sale, which is the effect of the present system, in vain may the People of these States expect the advantages of well settled neighborhoods, so essential to the education of youth, and to the pleasures of social intercourse, and the advantages of religious instruction.  Those States will, for many generations, without some change, be retarded in endeavors to increase their comfort and wealth, by means of works of internal improvements, because they have not the power, incident to all sovereign States, of taxing the soil, to pay for the benefits conferred upon its owner by roads and canals.

When these States stipulated not to tax the lands of the United States until they were sold, they rested upon the implied engagement of Congress to cause them to be sold, within a reasonable time. No just equivalent has been given those States for a surrender of an attribute of sovereignty so important to their welfare, and to an equal standing with the original States.

Today the federal government controls only 4 percent of the lands in those “Western” states, while it controls 50 percent of the current Western states, including 86 percent of Nevada.

In fact, the Nevada statehood document includes language saying the state would get “five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”

That is an implicit promise that the land shall be sold.

So, who is right? Bundy or most mainstream constitutional scholars? With or without the saber rattling.




41 comments on “Behind the Bundy bluster is there a constitutional leg to stand on?

  1. Anonymous says:

    Mainstream Constitutional scholars.

    I like easy questions.

  2. Barbara says:

    The standard is the Constitution, not scholars or Bundy. An examination of the writings of the Founders and the Constitution show the federal government was never given the authority to hold state land. The common practice was to get the land into private ownership where it would be more productive – a la the Northwest Passage. The land belongs to the State.

  3. nyp says:

    That is why Yellowstone National Park is unconstitutional.

  4. Anonymous says:

    Barbara there is so much wrong with what you said there isn’t time enough to address all the errors but seriously which “state” “owned” the land that the U.S. paid for (and “held” thereafter) when the Louisiana Purchase was made? How about the Alaska Purchase?

    Since the answer is none, on what basis is there to suggest that there was any “state land” to hold?

    Those lands, and others acquired by the US as a result of wars or otherwise, do not, and have not ever “belonged” to any state.


  5. Steve says:

    Louisiana Purchase

    Great example.

    The feds control only about 4 and a half percent of those lands.

    Lets get that percentage in Nevada!

    Even Alaska (at about 61%) is better than Nevada…..

    I love it when their arguments work in our favor!

  6. Anonymous, Barbara is correct, Read Joseph Story. Read the enabling acts of 1864. PS In 1864 that Hildago thing was closed out By those enabling acts and again 1868 as far as NV goes.

  7. I like discussions. Scotuic decisions have regularly up held States rights to land.

  8. SCOTUS was intended

  9. Anonymous says:

    John since you stepped in (it) please answer the fairly easy questions I asked if you can.

  10. There is a difference between territories and states.

  11. Steve says:


    is “easy”


  12. deleted says:

    Well Thomas, Barbara did say that it was “state land” and that the land belonged to the “State”.

    Did the land purchased by the US as part of the Louisiana Purchase, or the Alaska purchase belong to any state at the time of the purchase or immediately thereafter or not?

    We both know the answer is not so…..

  13. Steve says:

    I provided the answer.

    Patrick just doesn’t like it.

  14. deleted says:

    I guess that’s one way of not offering an opinion.

  15. nyp says:

    Today’s jobs report: Another 161,000 jobs added to the economy in October. Unemployment now down to 4.9% 73rd consecutive month of job growth, a record. And September and October numbers revised to add another 44,000 jobs.

    I blame that job-killing ObamaCare.

  16. Bill Shuster says:

    The federal numbers are skewed. The 4.3 % are “those receiving unemployment”, not those that are actually unemployed. If you can not get a job and unemployment compensation runs out, you are no longer considered unemployed. This is the “new math” of our federal government

  17. nyp says:

    That is 100% incorrect. From which wingnut website did this come from?

  18. If you give up looking for work, you are no longer “unemployed.” Labor force is participation is still down about 5 points.

  19. nyp says:

    1. that has nothing whatsoever to do with Mr. Shuster’s crazy, conspiracy-mongering claim that the numbers a “skewed” and that only people receiving unemployment insurance payments are considered “unemployed.” I look forward to seeing what he cites as the source for his assertion.

    2, You are correct that labor force participation rates remain low. You may wish to reflect on how much of that refects the aging of the baby boomer portion of the workforce.

    3. BTW, here is another interesting stat:
    Government jobs as % of total U.S. jobs, under…

    Reagan: 16.6%
    Clinton: 15.7%
    W Bush: 16.7%
    Obama: 15.3%


  20. I believe that includes state and local government jobs, which were devastated by the Clinton housing-caused recession.

  21. nyp says:

    Whah? The “Clinton housing-caused recession”? The one that took place eight years after President Clinton left office?

    You guys are something else.

  22. Steve says:

    What any president does takes almost four years to wind its way into the economy. For instance, ACA. Even as it was directed at the economy, it is not effecting the economy yet, they didn’t even know what the new “customer” base was going to really be.
    “Blaming” or “crediting” ACA with anything other than forcing people to spend money they may not really have for something that doesn’t (I speak from experience) provide the services promised, is far too early in the game.

    It should come as no surprise banks and mortgage loan companies would take advantage of the rules once they figured them out. IT took about 6 years to get that all wrapped up and begin sticking all the crap mortgages into those A+ rated securities.
    It was a great 8 years riding the wave until a few people figured out what was really happening, thanks to Bill Clinton allowing banks and mortgage companies to become one and the same.

  23. Nyp says:

    Ah, I see . . . .

  24. Nyp says:

    I more or less agree with everything in the article you linked.

    Do you?

  25. Steve says:

    As usual, reality lands somewhere in the middle.
    It’s a very well written article that looks to both ends of the spectrum equally.

    Of course I like what it says, otherwise I wouldn’t have posted the link!

  26. Rincon says:

    “What any president does takes almost four years to wind its way into the economy.” This suggests that the Bush Administration bears responsibility for the economy until about 2012 at which time, Obama’s policies took hold. Sounds like you like Obama better.

    BTW, according to the Economist, referring to Obamacare: “In spite of the turmoil, insurance for 2017 will cost roughly what the Congressional Budget Office predicted it would when the law passed.” 10/29/16 p. 25

  27. Steve says:

    And, if you read the 5-38 article Rincon, you would know Bush and Obama together took action that is credited with dampening the effects of Clinton’s action ending Glass Steagall. Which is what freed up the banks to make huge money and caused the “Great Recession” a decade later.

    As for ACA, CBO was only working with what they had at the time. Apparently, according to your Economist reference, ACA has had zero effect on the rise in premium costs. But I know, from personal experience, ACA has provided little in the way of services for all those new insureds. Its mostly lip service because many of those new “customers” were way sicker than expected.
    Now, who was saying things weren’t what we were being told?


  28. Rincon says:

    Only pointing out the logical conclusion to your statement. I agree to a point about blaming Bush and Clinton for the Recession so far as it goes, but you seem to neglect the 535 members of Congress, although they may have little blame because after all, they do essentially nothing. Even after accounting for that though, you’re oversimplifying greatly as Conservatives so often do:

    I was correct when I said long ago that the ACA wouldn’t have a major effect on the costs of health care in this country (meaning primarily that it wouldn’t cause the apocalypse that Conservatives were so confidently predicting) simply because it didn’t have any major mechanisms to contain overall costs, nor did it contain any major mechanisms to generate greater costs. It is simply about covering people in an organized way and reducing the 3rd world medical care that many in the U.S. were receiving due to refusal of coverage for preexisting conditions. Although it does generate costs to treat these people, costs are often saved in the long run when disease is treated properly before it becomes an ER crisis.

    According to Time’s 34 page article analyzing the cost of U.S. health care, the chief cause of the extreme costs for U.S. citizens is that the medical industry is essentially a cartel. Capitalism works great for commodities, but less so for health care. For example, people flat on their backs in the ER aren’t very big on comparison shopping.

  29. Steve says:

    So, things didn’t go up but Obama promised us they would go down and you apologize for believing his campaign promise?

    That’s acceptable.

  30. Rincon says:

    I don’t believe I ever claimed that Obamacare would reduce health care costs, only that the mythical apocalypse predicted by Conservatives would not occur, and I was right. For awhile, it did reduce the pace of health care cost increases, but those gains were short lived. For what it’s worth, the Republicans did manage to defeat several cost saving measures that were in the original Obamacare bill, although they wouldn’t have made a major difference in costs. For example, the Republicans insisted that insurance companies could not refuse to cover PSA (prostate) tests for screening, even though it has been clearly demonstrated that the tests are worse than useless for that purpose. I think Medicare is also still not allowed to negotiate drug prices as many other countries do, also at the insistence of Republicans.

    Some of the savings from Obamacare will come in the future. Polyps removed during an Obamacare funded colonoscopy won’t turn into cancer in the future, but the cost savings won’t occur for years. An insured diabetic who is diagnosed early because he was insured will save the system a lot of money, but it will be spread out over many years, while the victim remains functional. Under the old system, many of those suffered an appalling fate.

    Denying people coverage because of a preexisting condition defeats the purpose of having insurance in the first place. When it existed, it was a gross injustice to millions and extremely expensive, but on a different set of books. That didn’t stop Conservatives from advocating it though. By their simplistic accounting, keeping people functional is not a consideration. Indirect costs still confuse them.

  31. Steve says:

    First, it’s not all Republicans who defeated those “cost saving” measures, Democrats had the Senate under a lock. Republicans couldn’t block a flea.
    As far as preventing negotiating for better prescription costs, this is also as bipartisan as it gets.

    Stop the partisanship.

    ACA is still not fully implemented…because the administration keeps “extending” the implementation of the more onerous measures the passed by the party members who had full control of both houses of Congress and the administration.
    This is not partisanship, it is historical fact.

    Just as it is historical fact Obama promised lower premiums and the ACA has resulted in no change…except more people who have (no services) under the insurance they are required to obtain and maintain.

    Even as many insurers drop off the ACA, the winners under ACA are the insurance companies and (as Nyp suggested) investors in those same insurance companies.
    Democrats have picked winners and they are big insurance like United Health Care who sells insurance on extremely limited networks in what has become a rural monopoly.

    Nicely done, Democrats, Nicely done.

  32. Rincon says:

    We agree that ACA is a lousy system. What we disagree on is whether the old system was any better or worse. Considering the elephant in the room, we’re busying ourselves picking nits. Before ACA as now, Americans spent 40% more per person on health care than those of any other country in the world, yet we die at a younger age than almost all of those in the OECD. More of our babies die as well.

    “Stop the partisanship.” Do you think that refusing to consider a Supreme Court nominee for almost a year is partisanship and therefore should be stopped? Didn’t think so.

  33. Steve says:

    “What we disagree on is whether the old system was any better or worse.”
    Wrong. Almost everyone agrees we provide health care in the USA was flawed but also had very positive portions that attracted people from places all over the world, notably many of those people from places with real socialized healthcare systems.
    Because the US has always approached healthcare from a get out of the way point of view, regulating as needed in response to problems discovered.
    What we disagree about is the way ACA was shoved through. No debate outside the Democrat controlled legislative and administrative branches of government and what many still consider to be an unconstitutional action.

    ” Do you think that refusing to consider a Supreme Court nominee for almost a year is partisanship and therefore should be stopped? Didn’t think so.”

    Asking questions, trying to prove (?? something) by inserting things off the wall….then answering it as though it is being argued.
    Keep on arguing with yourself…but remember you are the only one doing the talking.
    Hope it is “satisfying”

  34. Rincon says:

    “No debate outside the Democrat controlled legislative and administrative branches of government and what many still consider to be an unconstitutional action.” Seems to me it had the votes needed to make it law. If you want unconstitutional, try refusing to consider ANY Supreme Court nominee for almost a year. Since you are unwilling to criticize it, I assume you find it acceptable. I agree that it’s off the wall, but the American people are swallowing it.

    We agree that if you have lots of money, the U.S. health care system can provide high quality care. The death rates speak for the overall effectiveness of the health of each country’s citizens. We’re getting no bang for our buck.

  35. Steve says:

    Changed the topic.

    Nice one.

  36. Rincon says:

    Seems to me it had the votes needed to make it law. You call that ignoring the topic? Might want to have your vision tested. Any system costing 40% more than any comparable system that also produces inferior results should be scrapped, but you seem to have some sort of emotional attachment.

  37. 4TH ST8 says:

    […] the constitutionally questionable Antiquities Act, Obama basically declared the land in the two new monuments off limits, though we […]

  38. […] as I related a couple of months ago the law has never been challenged on the basis of its […]

  39. […] But as I related a couple of months ago the law has never been challenged on the basis of its constitutionality. […]

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