Court Decisions Offer New Approach for Resisting Federal Mandates

Published December 1, 1997

Four recent Supreme Court decisions have re-established the Constitution as the law of the land, giving American landowners a new method for countering EPA and other government agency efforts to trample private property rights.

According to Albuquerque, New Mexico attorney Lana Marcussen, the Court’s decisions–which strengthen a constitutional argument known as “scope of authority”–could have “a profound effect on our ability to deal with the problems created by the Executive Branch’s unrestrained power to control land and people’s lives.”

Marcussen contends that the scope of authority argument may increase the odds of land users winning in court. The argument can be used by any group or individual, she says, because whenever the Constitution is not followed, all citizens are harmed–and thus anyone has standing in court to challenge the action. Challenging agency actions with a scope of authority argument should be relatively inexpensive, she said, and should results in a quick decision on the matter in question.

The powers being used by the Clinton administration to create and enforce land use-related laws, and to manage federal lands in the West, are, according to Marcussen, Emergency Territorial War Powers. Those powers represent a chain of law that goes back to the Dred Scott decision handed down by the Supreme Court just prior to the Civil War.

Originally intended to perpetuate slavery in the southern states, the Dred Scott decision pushed the country deep into civil war. In 1874, the emergency war powers created by the decision were rescinded–but then immediately re-instituted when the country’s Indian law was reorganized. It is in the Indian law that the emergency war powers are founded today.

Among the emergency war powers is territorial authority, which gives the federal government sovereignty over the states. Under this territorial authority, the federal government chooses to “allow” what it wants to, but this “allowing” does not create a “right.” What the government “allows,” but does not create a right to, the government can disallow at its pleasure.

Timber contracts, grazing leases, and other such agreements would normally be considered a contract enforceable in a court of law. A landowner who pursues an action in court to enforce those contracts could win in state court, but would inevitably lose in federal court. All states recognize a bundle of rights in the land, but in federal courts there is no bundle of “rights.”

Emergency war powers have given the federal government carte blanche to create laws and regulations. Until recently, it has been all but impossible to go to court to correct overreaching authority. In the past, the courts have refused to rule against any law or regulation that is founded in the emergency war powers loophole. Since the late 1970s, most environmental laws, treaties, trade agreements, and other such actions have been taken under this emergency power authority. The Executive Branch has simply combined the authority it actually has with powers that are reserved solely to Congress, by using emergency declarations to push through actions that are unconstitutional and beyond its scope of authority. For example, the Endangered Species Act has not been re-authorized by Congress, and thus its enforcement is beyond the scope of the Executive Branch’s authority.

Four recent Supreme Court decisions, however, have attached the scope of authority issue head-on, “dramatically re-establishing our Constitutional rights” according to Marcussen, “and asserting state sovereignty over federal government.”

In the Boerne decision (DATE?), the Court ruled that for some emergency war powers to exist, it would be necessary to amend the Constitution. The Printz-Mack decision (Brady Act) reaffirmed state sovereignty over federal government, ruling that the federal government could not use emergency authority power to compel state and county officials to enforce federal mandates. The Court also confirmed that sovereignty is vested in the people, and that powers given to the Legislative Branch cannot be passed on to the Executive. By determining that Congressional powers can be used only by Congress, because only Congress is accountable to the people, this decision defines the “scope of authority” argument.

Striking a further blow for state sovereignty, the Court upheld agreements negotiated by the State of Alaska and native Alaskans concerning the disposition of Alaska lands. Interior Secretary Bruce Babbitt had refused to accept those agreements and would not release control of the Alaskan shoreline to the state, claiming emergency territorial powers. The State of Alaska prevailed in Alaska v. Babbitt, decided WHEN.

In Idaho, the Coeur d’Alene Indian Reservation had been expanded by Executive Order using emergency territorial powers. The State of Idaho fought the expansion, claiming that the bed and banks of Coeur d’Alene Lake and Coeur d’Alene River were under state control. The tribe went to federal court to quiet title the lake and river. Idaho argued that the Indians could not bring their action in federal court, and that any action to claim the property had to go to state court. In Coeur d’Alene v. State of Idaho, the Supreme Court agreed, further enforcing state sovereignty over federal government.

Other decisions of note come from the federal Ninth Circuit Court of Appeals, including a recent case in which the court ruled that Indian tribes cannot deny state law enforcement actions on Indian reservations. On June 27, the Ninth Circuit handed down the Jorgensen decision, pertaining to control of land where water diversions from Lake Havasu to Los Angeles take place. In essence, the court ruled that the federal government is a proprietor on the land, subject to the same state laws as anyone else within the state.

The Jorgensen ruling would appear to subject the federal government to state landlord/tenant laws. The ruling further determined that the federal government could not merely declare an emergency to get what it wants.

Combined, these court decisions make it clear that the federal government has been exceeding its scope of authority. The Clean Water Act, Endangered Species Act, Ramsar Treaty, and other such acts–all implemented using emergency territorial war powers–should be considered ultra vires acts–acts without authority.

Marcussen notes that when the Constitution is being abused, all citizens of the United States are harmed. Any citizen or group of citizens thus has standing to file suit under 28 USC 2201, which grants the right to file suit in Federal District Court for a declaratory judgment. The suit would assert, for example, that the Secretary of the Interior, by extending the Clean Water Act using emergency territorial powers after the expiration of the Act, acted beyond the scope of his authority.

A request for declaratory judgment, according to Marcussen, should make the following points:

  • that the law in question has expired;
  • that the law has not been re-authorized by Congress;
  • that there is no reason the law cannot be re-authorized by Congress;
  • that there is no existing emergency; and
  • that it is Congress’ role under the Constitution to define the scope of authority of the law.

A request for declaratory judgment should also itself describe the scope of authority and ask for the Court’s judgment that that authority has been exceeded.

Jim Tenney is president of the Wilcox Chapter of People for the West. A real estate agent and consultant for livestock operations, Tenney has dealt extensively with federal agencies. He can be reached at RR 2, Box 1421, Wilcox, AZ 85643; telephone 520/384-2834. This essay first appeared in the August 1997 issue of People for the West!