The Bureau of Land Management (BLM) has created controversies in two States. The Cliven Bundy ranch affair, or the Battle of Bunkerville, is one. The BLM trying to seize 90,000 acres of bottomland on the Texas side of the Red River is another. The legal standing of the BLM is different in the two cases. If the relevant statutes are valid, the BLM would prevail against Cliven Bundy. The BLM could not prevail against Texas ranchers who have deeds and titles to those 90,000 acres. But the BLM is on far shakier ground than that. Its very reason for being goes against the Constitution.

The BLM and statutory law

Dr. Byron Schlomach of the Goldwater Institute’s Center for Economic Prosperity explained where the BLM stands to Theresa Mull of Human Events. Concerning Cliven Bundy, Schlomach did not address Bundy’s failure to pay grazing fees to the BLM for twenty years. He addressed only the BLM’s refusal to renew grazing leases to protect the so-called desert tortoise. He concludes: if the BLM wants Cliven Bundy and all his neighbors off that land, for any reason or no reason, none of us can do anything about it. Only Congress can say how it wants those lands managed.

The Texas matter does involve the taking of private property. Here Schlomach invokes Amendment V. It reads in relevant part:

Private property shall [not] be taken for public use, without just compensation.

So, the doctor says, the BLM must buy those ranchers out.

All very well. But Schlomach ignores one key fact: the BLM has no authority to own those vast tracts of land. Or to say it more strictly, Congress lacks that authority.

The BLM, Congress, and the Constitution

The US Constitution. Photo: National Archives of the United States

The United States Constitution is a written contract among the States. As such it tells what public uses the Congress may put any land, and how it may acquire that land.

Article I, Section 8 sets forth most of the Powers of Congress. Those powers include:

• Taxation
• Borrowing money.
• Regulating interstate and foreign commerce, and commerce with sovereign Native American tribes.
• Setting uniform laws of naturalization and bankruptcy.
• Ordaining and establishing federal courts lower than the Supreme Court.
• Coining money and regulating its value.
• Fixing standards of weights and measures.
• Punishing counterfeiters.
• Issuing copyrights and patents.
• Establishing post offices and “post roads.” For the sake of argument, let us take “post roads” to include federal highways, and the system of mail delivery aboard airliners.
• Punishing pirates captured in international waters.
• Declaring war and writing rules of engagement.
• Raising and supporting armies and a navy, and writing Codes of Military Justice for the same.
• Calling out State militias, but only for three specific purposes.
• Setting standards for militia recruitment, training and discipline.

And then we read Clause 17. It authorizes two ways for Congress to acquire land, and the uses to which Congress may put that land. First, it authorizes Congress to ask two or more States to cede enough land to make a district (not more than ten miles square) for building a federal capital city. Second, it authorizes Congress to buy land in any State, with the consent of the legislature of that State. And Congress may use the land it buys to support its exercise of its enumerated powers. This is the full meaning of “the erection of forts, magazines, arsenals, dockyards, and other needful buildings.”

A needful building is any building the government needs to carry out an enumerated power. Clause 17 names four specific “needful building” types: forts, magazines, arsenals, and dockyards. An air base  is a “needful building” within the meaning of Clause 17. So is a post office. So also is a tax office.

But a land office is not a needful building. Why not?

Because nowhere, either in Article I Section 8 or in any other Amendment having the words “Congress shall have the power” in it, does the Constitution authorize the Congress to either:

1. Acquire land as a territory and then deliberately withhold it from any State that might nominally include it. (Which evidently the federal government did in Nevada and other new States after the Mexican War.) Or:
2. Use said land, or any other land, for grazing forage.

Note that again: not one article, either in the original Constitution or of amendment thereto, says, or implies, that the Congress shall have the power “to exercise exclusive legislation” over any lands for the management of grazing forage, crop production, or any other purpose.

Any suggestion that the Congress may in fact acquire land in any manner other than those that Clause 17 prescribes, or to use that land for purposes other than the exercise of its enumerated powers, grants unlimited power to the federal government. And that sort of grant is totally inappropriate to a free people.

Thus far no commentator, except perhaps for Judge Andrew P. Napolitano (formerly of the Superior Court of the State of New Jersey), has recognized this key fact.

Cliven Bundy is in the perfect position, if he gets a good lawyer, to argue squarely against this clear excess of the authority of Congress and the BLM. He literally cannot prevail any other way. (He might be able to recover damages for cattle the BLM slaughtered and buried en masse; the BLM would then deduct that from the million dollars he owes it.) And that alone would force the Supreme Court to address the issue of Congressional authority.

Someone should advise Cliven Bundy, in addition to “stay away from the press,” to file a writ of quo warranto, to ask the BLM by what authority it does anything in the State of Nevada. The Texas ranchers might have standing to file for a similar writ. If the only remedy a court will offer them is a lump-sum buyout of their titles and deeds, then if they want to keep the land itself, they must contest the government’s power to take it under any terms, “just” or not.

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