In the latest sign of how American politics has descended into virtual graffiti legislation, the governor of Utah has signed legislation authorizing the state to exercise eminent domain over federal lands. It is clearly unconstitutional but that seems to matter little to legislators or Gov. Gary Herbert who signed the two bills.
What is truly amazing is that the state is setting aside $3 million dollars to litigate the frivolous claims at a time when the state is facing budget shortfalls and other economic problems.
For the full story, click here.
Sam D.
Typical drivel. We the people? Are you a moron?
To collectively form a government yes but I don’t think that extends to giving everyone what they want at the expense of others. You are a fool if you think otherwise.
The enlightenment is progressive? I dont think so. Classical liberal certainly. Your understanding is severely limited by your rose colored glasses.
Ever hear of John Locke or Edmund Burke? Founders heard of them as well.
Jefferson a progressive? A couple of things but he basically was for individual rights. You however would do better in a Stalinist state.
Vince, excellent constitutional analysis as usual. Although several posters have raised legitimate questions about the use of public lands, my opinion is that the actions of the Utah legislature have nothing to do with serious issues of constitutional interpretation or state sovereignty.
During the eight years of the Bush Adminstration, this country operated under a virtual dictatorship of the executive branch, with Congress ceding its authority with nary a whimper and the few voices of dissent drowned out by patriotic fervor and war lust. Unless I missed it somehow, there was not a whisper from the right about the excesses of the federal government in general or the abuses of presidential power in particular.
Nevertheless, before the last vote was counted on the most remote island in Hawaii last November, when it was clear that the Democratic Party would enjoy large majorities in both houses of Congress and control of the White House as well, the fossilized remains of John C. Calhoun, a Yale alumnus whom conservatives inexplicably never accuse of being another useless Ivy League intellectual, suddenly sprang from the grave shouting “Nullification!” Since that moment we have experienced the growth of what is essentially a neo-secessionist movement. As was its predecessor, it is primarily based in the South and, as was its predecessor, its strength lies not in its arguments, but in the fear and passion it seeks to promote. I have my own explanation for this strangely emerging interest in “states’ rights,” but I will save that for a different time to avoid throwing this thread into total disarray.
So we have Republican governors calling for secession, Republican state legislatures attempting to annex public lands, Republican state school commissions voting to erase Thomas Jefferson from our historical memory and Republican attorneys’ general mounting law suits against duly enacted acts of Congress (with threats of impeachment against the attorney general of Georgia for having the audacity to refuse to spend millions of taxpayer dollars in a frivolous judicial exercise).
The Tea Party movement, largely organized and funded by highly paid Republican political operatives and independent Rovians, provide the “grassroots” cannon fodder for what is really an effort to de-legitimize the federal government and destroy a presidency. That many Tea Party participants are incapable of coherently describing their goals is best explained by the fact that they have no goals other than to “take back our country,” another Palin rallying cry which should be recognized for the epithet that it is. The Tea Party is not a movement for positive change; it seeks to make naysaying a political platform.
Therefore, in the interests of honest description and in honor of the great senator who is the spiritual forefather of the Tea Party movement, I humbly propose that it be re-named the New Nullifier Party.
National parks are a purpose of government.
What, you want to auction them off to Disney and Universal Studios?
Well, then, put in a bill in Congress or a constitutional amendment.
Stop evading the issue.
What part of the words of Article IV, “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,” that have been so studiously avoided, are inapplicable to this issue?
BTW, the statement about lands acquired without state consent has no application to the lands reserved by the United States at the time of statehood. As the Court stated, “since the adoption of the Constitution, they have, by cession from foreign countries, come into the ownership of a territory still larger, lying between the Mississippi River and the Pacific Ocean, and out of these territories several states have been formed and admitted into the Union. The proprietorship of the United States in large tracts of land within these states has remained after their admission.” 114 U. S. 532
The proprietorship of the United States remained.
There has been, therefore, no necessity for them to purchase or to condemn lands within those states for forts, arsenals, and other public buildings unless they had disposed of what they afterwards needed.” 114 U. S. 532
There was no need to buy or condemn land, because the U.S. already owned the land.
The U.S. owns the federal lands in Utah. The lands were not “acquired” from Utah by any means. The lands were reserved by Congress to the United States. The power to dispose of those lands is vested in Congress, in words “written in pretty straight forward language by a group of individuals that knew the English language.”
So what is the problem?
There has been a deafening silence by the conservative libertarian strict constructionalist original intent caucus at this blog about the blatant disregard of constitution rules and regulations by the Utah House.
Sam,
Byron is not a bad sort if you keep in mind he’s a bit of . . . an engineer with a serious bromance for capitalism. He also has problems with differentiating the rights of the legal fiction corporations from the rights of natural or naturalized citizens as individuals, but that’s another thing to taunt him over. Enjoy.
“And [the constitution] was first and foremost designed to protect the “individual rights” of citizens, it wasn’t written with the collective in mind. But maybe I misread the Declaration.”
HAHAHAHAHAHAHAHAHAHAHAHAHAH
Seriously, you don’t know anything about how the Constitution was written do you. It really is comical to see you swing and miss again and again like this.
First of all, the Deceleration of Independence has nothing what so ever to do with the Constitution, other than they are both products of Enlightenment thinking. Moreover, the Constitution was not written with individual rights of citizens in mind. This is why the Bill of Rights were written; because the Constitution as written did such a poor job addressing individual rights that it had to be amended before it could be ratified. Also, if you bother to actually read the entire Constitution (which I suspect you have not done), you will see that it does speak of the collective “we the people” not simply individual citizens rights.
Given your incredible ignorance of the most basic elements of Constitutional history, you are walking, talking proof of how absurd your notion that “regular people” can do a better job interrupting a document people can spend literally their whole lives studying.
You may think you can do a better job than any of the “liberal” justices in interpreting and applying the Constitution, but I know for a fact that any of Justices, including the ones on the Conservative wing (whom I have fundamental disagreement with) could on their worst day do an infinitely better job than you.
“A good many people believe that we have become way too progressive and are abandoning our founding principles.”
Are you honestly this clueless about our history? I’m not sure you fully grasp how radical the ideas behind the US Constitution were at the time they were written. We’ve always been a progressive nation by our very nature. To say otherwise is shameless revisionism.
And yes, anyone who says we’re becoming a communist state is an idiot, who clearly has not even the faintest idea what communism is, or even why it actually is bad.
Joe fails US Government forever.
Vince Treacy said “I have seen no indication that the lands were ceded to the US, or bought by the US with the consent of the State.”
But chooses to ignore Justice Fields opinion that “Where lands are acquired without such consent, the possession of the United States, unless political jurisdiction be ceded to them in some other way, is simply that of an ordinary proprietor. The property in that case, unless used as a means to carry out the purposes of the government, is subject to the legislative authority and control of the states equally with the property of private individuals.”
Which leads us back to the question of; Are National Parks a purpose of the government?
This was an interesting comment at March 29, 2010 at 7:58 pm: “I would be happy if most judges spent more time looking at the intent of the Founders instead of making up stuff from “emanations from the penumbra”. Oh and why can’t a citizen spend a little time and energy and determine what the constitution says? It was written in pretty straight forward language by a group of individuals that knew the English language. And it was first and foremost designed to protect the “individual rights” of citizens, it wasn’t written with the collective in mind. But maybe I misread the Declaration.”
Well, I have taken a look at what the Constitution actually says, quoting is at length. I have found it written in straightforward English language. The intent of the framers to grant authority over the disposal of federal property and land to Congress was clear at the time because of the bitter disputes among the States that even led to hostilities.
So why is it so hard for the Utah legislators to recognize that they are violation all known conservative principles by contradicting the express language and intent of the Constitution for the parochial and financial interests of their own State?
They have powerful Members of Congress. Why can’t they follow the rules in the Constitution?
So what?
Where is the discussion of:
1) Article IV of the Constitution,
2) The actual holding of the City of Chicago case; or,
3) The actual holding of Utah Light and Power.
What is the relevance of lands purchased with the consent of the state legislature to the issue in Utah, which involves the lands owned all along by the Federal Government? The case involved a different clause of the Constitution, Art I, sec. 8:
“Congress shall have power 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 the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.”
As the Court stated, “the United States possessed, on the adoption of the Constitution, an immense domain lying north and west of the Ohio River, acquired as the result of the Revolutionary War, from Great Britain, or by cessions from Virginia, Massachusetts, and Connecticut, and since the adoption of the Constitution, they have, by cession from foreign countries, come into the ownership of a territory still larger, lying between the Mississippi River and the Pacific Ocean, and out of these territories several states have been formed and admitted into the Union. The proprietorship of the United States in large tracts of land within these states has remained after their admission. There has been, therefore, no necessity for them to purchase or to condemn lands within those states for forts, arsenals, and other public buildings unless they had disposed of what they afterwards needed. Having the title, they have usually reserved certain portions of their lands from sale or other disposition for the uses of the government.”
From the syllabus: “In the act admitting Kansas as a state, there was no reservation of federal jurisdiction over the Fort Leavenworth Military Reservation. The State of Kansas subsequently ceded to the United States exclusive jurisdiction over the same “saving further to said state the right to tax railroad, bridge, or other corporations, their franchises and property on said reservation.” Held that the property and franchises of a railroad company within the reservation were liable to pay taxes in the Kansas imposed according to its laws.”
So that was the situation in Kansas for Fort L. The United States had not retained ownership of land within the State after its admission. Kansas then ceded land to the federal government.
Where the US reserved ownership after statehood, Article IV applies. That includes land in Utah. I have seen no indication that the lands were ceded to the US, or bought by the US with the consent of the State. The issue is federal property and the power of Congress under Article IV.
Up above, # 49 PacMan, March 30, 2010 at 10:29 am, said: “Again, I’m surprised at the shallowness of Turley’s analysis and the gullibility of a great many cynical posters.”
Again, we have not heard back from pac.
I think JT’s conclusion stands up well.
More from the case cited immediately above:
“Where, therefore, lands are acquired in any other way by the United States within the limits of a state than by purchase with her consent, they will hold the land subject to this qualification: that if upon them forts, arsenals, or other public buildings are erected for the uses of the general government, such buildings, with their appurtenances, as instrumentalities for the execution of its powers, will be free from any such interference and jurisdiction of the state as would destroy or impair their effective use for the purposes designed. Such is the law with reference to all instrumentalities created by the general government. Their exemption from state control is essential to the independence and sovereign authority of the United States within the sphere of their delegated powers. But when not used as such instrumentalities, the legislative power of the state over the places acquired will be as full and complete as over any other places within her limits.
As already stated, the land constituting the Fort Leavenworth military reservation was not purchased, but was owned by the United States by cession from France many years before Kansas became a state, and whatever political sovereignty and dominion the United States had over the place comes from the cession of the state since her admission into the Union. It not being a case where exclusive legislative authority is vested by the Constitution of the United States, that cession could be accompanied with such conditions as the state might see fit to annex not inconsistent with the free and effective use of the fort as a military post.”
In discussing lands that were purchased with consent of the state legislature, SCOTUS discussed lands that were acquired before the territory became a state.
“Where lands are acquired without such consent, the possession of the United States, unless political jurisdiction be ceded to them in some other way, is simply that of an ordinary proprietor. The property in that case, unless used as a means to carry out the purposes of the government, is subject to the legislative authority and control of the states equally with the property of private individuals.”
“Thus, in United States v. Cornell, 2 Mason 60, it was held by Mr. Justice Story that the purchase of land by the United states for public purposes within the limits of a state did not of itself oust the jurisdiction or sovereignty of the state over the lands purchased, but that the purchase must be by consent of the legislature of the state, and then the jurisdiction of the United States under the Constitution became exclusive.”
~Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525 (1885)
http://supreme.justia.com/us/114/525/case.html
The Fifth Amendment provides: “nor shall private property be taken for public use, without just compensation.” Private property. The amendment gives rise to the clear implication that a right of a government to condemn PRIVATE land for public uses, such as roads and bridges, was an inherent power of a sovereign government. The Fifth Amendment limited that power by requiring just compensation. There was no implication that the land of the sovereign federal government could be condemned.
On the issue of “special purpose,”: everyone, please reread the quoted stuff from the City of Chicago case in full. The Court, speaking of a hypothetical situation not before it, opined in dicta that that land within a state purchased by the United States as a mere proprietor, and not reserved or appropriated to any “special purpose,” might be subject to condemnation. But that was not the case before the Court, so it did not decide that issue.
There is no need for an analysis of “special purpose” for the land owned outright by the United States from the time long before statehood. That land is governed by Article IV. It is the property of the United States. It is subject to the exclusive power of disposal vested by the words of the Constitution in Congress. What is unclear about the language of Article IV? In Utah Power and Light, the Court actually held that a State could not exercise eminent domain against federal land.
So, Duh is critical of the language that I used. Just trying to make a dull subject interesting for the readers here.
But where is the Duh discussion of:
1) Article IV of the Constitution,
2) The actual holding of the City of Chicago case; or,
3) The actual holding of Utah Light and Power.
Duh says “I think a court of law, rather than a body whose overwhelming majority of members have no interest in Utah, is the appropriate venue to decide whether or not the State of Utah has the ability to exercise the right for the legitimate benefit of the public.” Well, good for Duh. Duh is entitled to that opinion, and I am sure that there are many compelling reasons for it. Too bad they did not write that in the Constitution.
The problem is that the Constitution grants this authority to the Congress, not the courts. It is right there in Article IV. Duh refuses to even mention its words. The courts know these words. Sworn to uphold the Constitution, they respectfully decline invitations to step on the authority of Congress. Once again, submit a proposed amendment.
Look, everyone, we can learn from history. Taney thought that neither Congress nor any territorial legislature had any power whatsoever to interfere with the Fifth Amendment property rights of slaveowners to bring their slaves into the territories. He thought the Supreme Court, not Congress, should resolve the issue, based on the pro-slavery policies of the majority Justices. They blatantly disregarded the language of Article IV. Look how that turned out.
Finally, one more time:
“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 states may be sovereign, but the land within their boundaries that is the property of the sovereign United States of America is subject to the power of Congress, not the States, under the Constitution, the supreme law of the land. When the people ratified the Constitution, they gave that particular state power to the federal government in clear and express language.
Here’s a good summary about “Eminent Domain”.
http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html
I think we all recognize the states to be sovereign, and that the land in which Utah intends to exercise eminent domain rights is within the boundaries of that sovereign.
I’ll be interested to see how Jeffrey Skilling’s challenge to the “honest services” law goes. Obviously, we need to be very careful in challenging such obviously political garbage legislation and the executives who waste government resources pursuing it for personal political gain – we benefit in the end from erring on the side of tolerating such waste. But at some point, these sorts of things are so egregious that we really need to look at some combination of making the individuals involved reimburse the government for the money they are wasting and look at criminal prosecution for such disingenuous official behavior.
Vince Treacy,
When you make statements like,
“This crowd in power in Utah right now”
“The Utah legislature will soon begin to pass laws governing the recognition of foreign countries, the acceptance of credentials of diplomats, and the regulation of the land and naval forces.”
“Of course, some of the clowns in the Utah House”
you lose my respect for your legal interpretation. You do remember how to argue on the merits. Don’t you?
I questioned whether National Parks would be considered a “special purpose” that would prevent the use of eminent domain. I’m not so sure that it does.
The roots of eminent domain lie within the common law of England. The Fifth Amendment would seem to recognize that well established law. In addition, I think a court of law, rather than a body whose overwhelming majority of members have no interest in Utah, is the appropriate venue to decide whether or not the the State of Utah has the ability to exercise the right for the legitimate benefit of the public.
Too bad that pesky Constitution keeps getting in the way.
Ilya Somin at Volokh wrote: “Utah Power & Light Co. v. United States, a 1917 Supreme Court decision, ruled that the states cannot use eminent domain or other powers to dispose of federally owned land except in so far as Congress permits them to do so. I think that decision was probably correct. As the Court pointed out, Article IV, Section 3, Clause 2 of the Constitution gives Congress the power to “dispose of and make all needful rules and regulations respecting’ the lands of the United States.” This congressional authority supersedes any contrary state law because of the Supremacy Clause of Article VI. Thus, a federal law assigning federally owned land to a particular purpose such as a National Park supersedes any state law that seeks to take the land and use it for other purposes.”
http://volokh.com/2010/03/03/utah-may-try-to-use-eminent-domain-to-take-federal-government-land/
Of course, some of the clowns in the Utah House have said that they hope their litigation will result in the reversal of this and other decisions. Well, you can never say never, but any Supreme Court that reversed that decision would have to deny and disregard the plain and unambiguous language of the properties and territories clause of Article IV of the Constitution.
And, of course, there is a precedent in constitutional law for such a ruling. In Dred Scott v. Sanford, Mr. Chief Justice Roger Brooke Taney took leave of his judicial senses and, in blatant disregard of his oath to uphold the Constitution, held that Article IV gave Congress no power over the territories acquired after 1789.
You could look it up.
Duh, March 30, 2010 at 11:30 am: “It is not questioned that land within a state purchased by the United States as a mere proprietor, and not reserved or appropriated to any special purpose, may be liable to condemnation for streets or highways, like the land of other proprietors, under the rights of eminent domain.”
~ United States v. Chicago, 48 U.S. 7 How. 185, [194] (1849)
That is correctly quoted from the case. But the very next sentences go on to say:
“But that was not the condition of this quarter-section, being a part of the land originally ceded to the United States as the Northwest Territory, and afterwards specially set apart for their use for military purposes. Here the opening of these streets would, also, injure, if not destroy, the great objects of the reservation. Nor was any compensation proposed or made, as in other cases, for condemning this land and damaging the buildings thereon. It seems, too, that though land purchased within a state for ordinary purposes by the general government must yield to the local public demands, yet land, when though public, and especially one under another government and by mere implication. United States v. Ames, 1 Woodb. & Min. 88.
“I[t] must be for a public object, clearly superior or paramount, or to which preference is expressly given by law or the Constitution, in order to make the right clear to seize and condemn land so situated. @ 47 U. S. 544, and cases there cited, 4 Gill & Johns. 108, 150.”
The Court therefore ruled against Chicago:
“1st. That the corporate powers of the City of Chicago have no right to open the streets through that part of the ground laid out into lots and streets, but no[t] sold by the government.
“2d. That the corporate powers of the city are limited to that part of the plat which, by sale of the government, has become private property.
“And 3d. That the streets laid out and dedicated to public use by Birchard, by his surveying the land into lots and streets, and making and recording a map or plat thereof, did not convey the legal estate in the streets to the City of Chicago, and thereby make the ground embraced by said streets “private property,” so as to authorize said city of Chin go to keep said streets open. Whereupon, it is now here ordered and decreed by this Court, that it be so certified to the said circuit court.”
So the first paragraph quoted above seems to apply to property bought by the federal government in its proprietary status. The Court did not find that was the case before it.
The land that Chicago sought was part of the land ceded to the United States after the Revolution and committed to its power by Article IV. It was governed from the very start by the Northwest Ordinance, first enacted by the Continental Congress while the Framers sat in Philadelphia, and then reenacted by the First Congress under the Constitution. The Court denied Chicago the right to exercise eminent domain to build a road.
It appears that the federal lands in Utah (and Alaska and elsewhere in the West) were not lands purchased by the federal government from private parties in a proprietary capacity, but were lands obtained by the United States as a nation as part of its growth across the continent. In that capacity, the federal government has plenary power under Article IV.
The western lands appear to be more like lands held “by an original cession to that government, and afterwards appropriated for a specific public object,” and therefore ”cannot easily be shown liable to be taken away for an ordinary local object.”
It is certainly a valid policy argument to support exploitation of public lands, but the venue for that argument is in the halls of Congress, where it should be determined democratically by the elected representatives of all the people. Of course, if Utah or any other State wants to reject elective democracy in exchange for rule on economic matters by unelected judges, they should make their policy preference clear to everyone.
This crowd in power in Utah right now would like to hand this debate over to a small number of unelected federal judges to determine the matter, on the basis of their own policy predilections. There are certainly no standards or policies in the Constitution to favor or disfavor “unfreezing” of assets, so the judges could decide to do whatever they thought best.
The policies of federal land use and development can be debated without limit, but the Utah legislature is not the forum for this question or for any other question committed by the text of the Constitution to the United States of America.
The Utah legislature will soon begin to pass laws governing the recognition of foreign countries, the acceptance of credentials of diplomats, and the regulation of the land and naval forces. Good luck.
Duh…
Oh, I’m with you there. And a case can easily be made that even if we suffer the greatest economic collapse in our history, the federal government would STILL function adequately and not need that oil to survive.
Meaning that it STILL has no constitutional justification for seizing all that territory.
It’s tyranny, pure and simple.