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.
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.
A 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.