Apr 16, 2014

Posted in Uncategorized

Thick and Thin Legal Issues at the Bundy Ranch

In ConLaw today, I spent some time unpacking the legal issues in the recent Bundy Ranch standoff. There are a lot of thick and thin constitutional questions.

First, Bundy seems to reject the Constitution’s property clause.  (It was a wonderful twist of scheduling fate that I assigned the “Property Clause” in ConLaw the week after the Bundy Ranch standoff. ) In an interview he said that the federal government has “no jurisdiction or authority” on his grazing rights. Under the Property Clause, 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.” The land at issue was owned by the United States prior to Nevada statehood as a territory. I suspect Bundy will argue that his family has obtained a prescriptive easement on the land, as it has continuously, openly, and (absolutely) hostilely, grazed on the land for 170 years. Though, adverse possession is not permissible against the federal government.

Second, Bundy does not accept the supremacy clause, as he said he has “no contract with the United States government.” To the extent that BLM, pursuant to the Property Clause enacts regulations concerning land the government owns, then yeah, he has a contract with the government. Those are the Supreme Laws of the land.

Third, Bundy has an odd vision of the Equal Footing Doctrine, which he claims allows him to ignore federal law:

“At the moment of statehood, what happened?” Bundy asked. “At the moment of statehood the people of the territory become people of the United States with the Constitution, with equal footing to the original 13 states. They had boundaries allowing them a state line. And that boundary was divided into 17 subdivisions, which were counties. Which I live in one of those counties, Clark County, Nevada.” “As a citizen of that county, I abide by all the state laws,” he concluded.

The equal footing doctrine states that all states must be admitted to the union with equal rights and powers. But the equal footing law doesn’t permit the residents of Clark County to ignore the Constitution any more than the citizens of one of the original 13 colonies. Those are the thin issues.

Fourth, and this goes meta, the Bundy standoff raises Cooper v. Aaron issues about the supremacy of federal law, and  resistance to court orders. Walter Olson links to comments made by Ted Frank that are directly on point.

I hate to see how many on my side who are upset at Obama’s violation of the Rule of Law cheer the Bundys’ criminal contempt of a court order. The Bundys are claiming a right to graze upon federal lands without paying or consent of the landowner on the grounds that the federal government has no sovereignty over Nevada. The US BLM has taken twenty years and multiple court proceedings to kick them out, winning twice in the Ninth Circuit. In response, armed militias showed up this week to defend the Bundys, who have threatened range war. The government has temporarily caved to avoid the possibility of armed confrontation. This really isn’t a close question, and threatens to tar all small-government and Second Amendment supporters.

Ted is exactly right. It is really, really important for people to follow court orders–even based on silly laws enforced in a ridiculous manner. The idea of a self-organized militia aiming sniper rifles at federal agents enforcing a court order is a very dangerous proposition. If one of those guys had pulled the trigger, we would have had a massive blood bath.

This brings me to Cooper v. Aaron. Although that case involved government officials flagrantly ignoring court orders, a similar dynamic happens when individuals flout a court order. Usually if one or a few people ignore a court order, they are arrested, and prosecuted. But when 1,000 militiamen swarm around federal agents, the normal rules are out the window.

Bundy-Ranch

Fifth, this standoff raises inevitable questions about the Second Amendment. I have often discussed the Second Amendment in terms of being a “doomsday provision,” to quote Judge Kozinski (see here, here, and here). This is the right that kicks in when all other rights fail.  A student asked at what point should society turn to arms (this is Texas after all). I responded that this is a question I pray none of us ever have to confront in our lifetimes, and that we should all attempt to work within the system, at every juncture. I also recalled Jefferson’s sentiment in the Declaration that a society should not rebel for “light and transient causes.”

Confrontations like that at the Bundy Ranch illustrate what I refer to as “shit getting real.” What happens when 1,000 militia men refuse to obey federal law, even under a flawed understanding of the Constitution, confront federal officials. In the end, I ducked the question, but let the class think about it for themselves. I still am.

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  • Jeremy Kidd

    I completely agree with the assessment of Bundy and the fact that he is clearly wrong in his legal assertions. I would offer one caution, however, as someone who grew up in the west (I went to high school only a hundred miles or so from where this all happened. Those in the West have seen the federal government regularly violate the law in regards to the management of land in the West. Agencies that were set up to promote responsible use of the land have become the primary obstacles to use of the land. I have heard Bundy claim elsewhere that he stopped paying his fees because the BLM stopped using those fees to manage the land for the benefit of him and other users, as was their responsibility. Instead, they started using the fees in ways that made it harder for anyone to use the land (The Saga of the Desert Tortoise is quite a farcical story that just happens to be true). His way of addressing the lawlessness of the BLM and other “land management agencies” is wrong, but I can’t help but feel sympathy for him, knowing the history of how he and others in the West have been treated.

    • dvfischer

      Yes, Bundy is unlawful and yes, I too feel sympathy. The US government cares not at all for legality or constitutionality. However, the government’s response is also unconstitutional. They have no constitutional right to enter a state.
      Both sides are at fault.
      I would also question the ownership of the land after statehood. Why is the land not State land? It is not a fort or other military use. Asserting ownership after statehood because of previous ownership by the Feds could just as easily be used to assert ownership of all lands in all previous territories. By that argument, the United States owns all land in Nevada. How is it the United States owns land in any state?

      • DavidPatrick

        “However, the government’s response is also unconstitutional. They have no constitutional right to enter a state.”

        Wow, you tea retards REALLY don’t know the law do you?

        NEVADA CONSTITUTION:
        “Sec: 2.  Purpose of government; paramount allegiance to United States.  All political power is inherent in the people[.] Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existance [existence], and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.”

        • dvfischer

          Yes, exactly, to exercise all of its CONSTITUTIONAL POWERS… They Federal Government has no constitutional power to enter a state except at the request of that state’s legislature. There is no secession here. The Nevada constitution cannot change the Federal constitution. The Federal Government is NOT all powerful. The whole point of the constitution, especially the BILL OF RIGHTS, is to LIMIT the Federal Government. Please read the US Constitution.

          • DavidPatrick

            Try again. The FEDERAL government manages FEDERAL land. Article IV, Section 3, Clause 2: “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”

            Or admit you don’t know jack about the constitution, inbred moron.

          • Granny B

            I was enjoying the discussion until the name calling David. You made a good point & ruined it by making it personal.

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  • dvfischer

    Does the Federal Government have the constitutional power to enforce Federal Laws?

    The 10th Amendment to the US Constitution says “The powers not delegated to the United States by the Constitution… are reserved to the States respectively, or to the people.” If the power to enforce Federal Law is not given to the United States in the Constitution, then that power is forbidden by the 10th Amendment. The US Constitution, Article 1 section 8 clause 15 says “Congress shall have the Power To provide for calling forth the Militia to execute the Laws of the Union…” and Article 2 Section 2 clause 1 says “The President shall be Commander in Chief … of the Militia of the several States, when called into actual Service of the United States”. So, the US Constitution sets forth a two-step process for enforcing Federal Law. First Congress must call out the militia and only then may the President, using the “militia of the several States” enforce the Federal Law. No other method is mentioned in the Constitution and thus any other method is prohibited. This is an important check and balance, between the Feds and the States, which seems to be lost.

    Do you think the Nevada state militia (national guard) will fire upon fellow citizen Cliven Bundy to enforce BLM regulations? If not, there is no other constitutional power given to the United States by its people to enforce such regulations. The constitutionally required, two-step process has not been followed. The FBI, CIA, ATF, BLM, nor any other three letter agency has such Constitutional power. Any other action taken by the Federal Government is unconstitutional abuse of power.

    • DavidPatrick

      DEAR TEA RETARD. READ THIS AND GET A FUCKING CLUE YOU MORON.

      NEVADA CONSTITUTION:
      “Sec: 2.  Purpose of government; paramount allegiance to United States.  All political power is inherent in the people[.] Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existance [existence], and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.”

      • MCHammer

        Why is it that dvfischer is unable to understand this? The land in question IS FUCKING FEDERAL LAND AND THEREFORE FEDERAL LAW APPLIES!!! This is not an issue where there is some question of jurisdiction and the state of Nevada has to fill in some legal gap in Federal law. Again there is this contingent of a bunch of moron hicks on the right who don’t have a grasp of the Constitution that they claim to defend to the last. These idiots are there defending the idiot Bundy who has clearly violated their sacred Constitution. Fucking imbeciles.

  • Christopher Baker

    I agree with your assessment of shit getting real. Just wait to see how it plays out when it’s a truly ‘worthy’ cause imo.

  • daroldstagner

    The entire legal argument is stilted in nonsense. The western US was developed under the concept of usufructory rights. Bundy isn’t harming the land so he is following 200 years of tradition and not hurting anyone by doing it. Any argument that some federal judge has decided this issue doesn’t have any real meaning. Particularly when all of the nonsense about turtles and solar panels seems to be the only “real” issue for the Feds. That spontaneous militia may have a better understanding of this issue than you realize.

    • DavidPatrick

      Wow, the tea retards don’t get it.

      “Bundy isn’t harming the land ” – Inaccurate, he increased his herd AND more than quadrupled the spread, invading wildlife preserves and national parks, because his cattle denuded the land to the point of unusability through overgrazing.

      “Particularly when all of the nonsense about turtles and solar panels seems to be the only “real” issue for the Feds.”

      The matter is TRESPASS and THEFT.
      TRESPASS on lands designated for other use.
      TRESPASS on lands that are a WILDLIFE PRESERVE and NATIONAL PARK.

      TRESPASS on lands for which he REFUSED to pay for a grazing permit.

      “That spontaneous militia may have a better understanding of this issue than you realize.”

      No, they’re just a bunch of violent, inbred, subhuman scum who used unarmed women and children as human shields.

      • daroldstagner

        I am trying to point out the concept of usufructory rights to water and how this issue appears similar to me. In respect of water the congress came up with McCarran-Ferguson which took water rights adjudication away from the federal government. This allowed the feds to sidestep their trust obligation relating to Indian water rights in that it left water rights adjudication to the states.. So in the end it appears that federal law is just used as an expedient rather than some meaningful standard.

        • DavidPatrick

          Federal law, if you inbreds would clue in to the CONSTITUTION, is THE SUPREME LAW OF THE LAND.

          • daroldstagner

            I am not inbred and the constitution does not speak to this issue, except very peripherally through the Tenth amendment. I have tired of your emotional instability.

          • DavidPatrick

            SUCK CONSTITUTION, INBRED MORON.

            Cliven Bundy is a thief, and his supporters hate the constitution.

            Or at least haven’t read it, so here’s a little class in Constitutional law for them.

            CONSTITUTION of the UNITED STATES OF AMERICA

            Article 1, Section 18, Clause 18

            The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the

            foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any

            Department or Officer thereof.

            Article IV, Section 2, Clause 2

            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…

            Article III, Section 3

            Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies,

            giving them Aid and Comfort.

            NEVADA CONSTITUTION

            ORDINANCE … Third. That the people inhabiting said territory do agree and declare, that they forever disclaim all right

            and title to the unappropriated public land lying within said territory, and that the same shall be and remain at the

            sole and entire disposition of the United States; and that lands belonging to citizens of the United States, residing

            without the said state, shall never be taxed higher than the land belonging to the residents thereof; and that no taxes

            shall be imposed by said state on lands or property therein belonging to, or which may hereafter be purchased by, the

            United States, unless otherwise provided by the congress of the United States.

            Sec: 2. Purpose of government; paramount allegiance to United States.All political power is inherent in the people[.]

            Government is instituted for the protection, security and benefit of the people; and they have the right to alter or

            reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the

            Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the

            Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to

            dissolve their connection therewith or perform any act tending to impair[,] subvert, or resist the Supreme Authority of

            the government of the United States. The Constitution of the United States confers full power on the Federal Government

            to maintain and Perpetuate its existance [existence], and whensoever any portion of the States, or people thereof attempt

            to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of

            the Constitution, employ armed force in compelling obedience to its Authority.

            ============================

            You should also realize that the Bundys and their terrorist allies have lied about the Constitution and the state of the

            land, which IS federal land:

            – Acquired legally (through the EXPRESS POWER of the federal government to make treaties with foreign nations, with the

            Mexican Cession included in the Treaty of Guadalupe Hidalgo, 1948).

            – RETAINED legally, when Nevada became a state, per terms of the Congressional law authorizing statehood (Article IV,

            Clause 3, Section 1 “New States may be admitted by the Congress into this Union”) and with the Nevada Constitution,

            Ordinance Third, which states “That the people inhabiting said territory do agree and declare, that they forever disclaim

            all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain

            at the sole and entire disposition of the United States”

            There is NO legal chain of ownership that would make them “state lands” as Bundy the Thieving Liar claims.

            There’s also this little gem where he claimed he is a “citizen of the Sovereign State of Nevada” and that “the federal

            government doesn’t exist” – well if he IS a citizen of Nevada he is obligated by its Constitution which has something to

            say about that as well:

            “But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional

            powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the

            people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending

            to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the

            United States confers full power on the Federal Government to maintain and Perpetuate its existance [existence], and

            whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the

            Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling

            obedience to its Authority.”

            http://www.leg.state.nv.us/const/nvconst.html

            ============================

            You should also realize that the question of whether it is Federal or State land has been adjudicated, IN NEVADA. The

            ruling stands as the law of the land.

            US v. Gardner, 107 F. 3d 1314, precedential. It’s FEDERAL land.

            http://scholar.google.com/scholar_case?case=15831637732276368134&q=US+v.+Gardner&hl=en&as_sdt=6,44&as_vis=1

  • artmofo

    As this article aptly points out, Bundy is a complete moron, as are the pot-bellied, gun-toting rednecks who are showing up to support him. Though I hope bloodshed is avoided, these people must be dealt with. We can’t have this country overrun by high school dropouts waving guns and thumbing their noses at the rule of law — no matter how prideful the NRA is of that.

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  • Willie

    I’m having a little trouble studying the various points presented while insults are being hurled back and forth. It makes me doubtful of those that are name-calling. Sorry, but I’m not a typical ConLaw student that can easily get past that. I’ll try again because I’m really interested in this case.