By DR. LARRY MOSES
No one asked me but... I see where President Obama has once again used his pen to violate the Constitution of the United States. President Obama is finishing up eight years of Imperial rule with a bang.
One cannot fault him for the fact that the United States is carrying on foreign wars in violation of the Constitution. These violations started long before he came in to office. It started as early as the Korean War.
There are those who would point out that Korea was not a war; it was an international police action on the part of the United Nations. I had an old Gunny Sergeant who was a Korean War veteran explain to me that when someone is shooting at you and you shoot back, that is war, not a police action. A police action is when a traffic cop writes you a ticket.
America has for the last fifty years been fighting undeclared wars all over the world. In Vietnam, over 50,000 Americans died in an undeclared war. While Section 2 of Article II of the Constitution names the President the Commander in Chief of the Army and Navy of the United States, it does not give him the power to declare war. Section 8 of Article I reserves this power to the Congress of the United States. Past Congresses have violated the Constitution by giving the President war powers without declaring war.
I bring this issue up not to discuss illegal wars but to point to the fact that the federal government has become Imperial rather than Constitutional. This is the very type government our forefathers rebelled against.
I will not argue the stupidity of allowing the United States to get involved in the quagmire that is the Middle East. I will, however, point out that without a declaration of war, the President has no Constitutional power to pick and choose where Americans can fight and die.
Article I Section 8 states that: “The Congress shall have the power ..To declare War, …”. The issue is not Congress giving war powers to the President without declaring war; the issue is America is either a Constitution Republic or an Imperial Fiefdom.
This brings me to what set off this diatribe. President Obama, the master of the “phone and pen”, apparently decided to give Senator Reid a retirement gift. Rather than an engraved watch he gave him the 300,000 acres that is Gold Butte. By imperial decree the President declared Gold Butte a National Monument.
There has been an ongoing battle in the State over this issue. I cannot attest to the merit of either side. However, I can point you to the Constitution and you can decide for yourself if the President has once again stepped outside the limitations of the document.
I am aware that other challenges to the president’s power to steal land from the states have been upheld by the Supreme Court. However, I would remind you that this is the same agency who upheld racial segregation in Plessy V. Ferguson until 1954 when it changed its mind in Brown v. Board of Education.
Article II specifically lists the power of the President. Nowhere in a review of this article do I see where he is given the power to declare 300,000 acres of the State of Nevada “off limits” to its residents.
I am aware that the State of Nevada, for the most part, has never left territorial status as the vast majority of the state is still under the control of the federal government. The BLM made it abundantly clear, during their dispute with the Bundy’s, that state or federal law did not matter as they violated almost every facet of the Taylor Grazing Act. They contended that the land in dispute belonged to the federal government and therefore, they were not bound by the federal law as codified in the Nevada Revised Statues. Furthermore, they did not hesitate to violate many of the First Amendment Rights of Americans citizens. These included the freedom of speech, the freedom of the press, and the right to peaceably assemble.
There are those who would argue since many of those who assembled at the Bundy ranch were armed, they could not possibly be considered peaceably assembled. However, if one looks closely, the only violence in this assembly was initiated by the BLM, and there was little in the way of retaliation by the demonstrators. The fact that American citizens are armed does not mean they are not peaceable.
Compared to riotous “unarmed” assemblies in the inner cities, the Bundy supporters were choir boys.
There are those who argue that the State was required to give the lands to the Congress of the United States in the admitting document for statehood. However, the Congress is not the President. Further this is a violation of the “equal footing” concept of states.
The powers of Congress are listed in Article I and they far exceed that of the President. Within the many powers listed in Section 8 of Article I is “…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, dock-yards and other needful buildings …” A narrow Constitutionalist might argue that the 300,000 acres were not purchased, there was no consent of the Nevada legislature, and there is no evidence that a fort, magazine, arsenal or dock yard is in the future of this land.
I would ask those who support this land grab the following question. If this President has the power to confiscate state land for a National Monument, what is to keep the next President from using his pen to declare Yucca Mountain a National Nuclear Waste repository?
The root of the problem is that Nevada, for the most part, is not a state. It is a territory and over eighty percent of Nevada is being governed as a such. The Constitution clearly states in Article IV, Section 3 “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 constructed as to prejudice any Claims of the United States, or of any particular state.” This would suggest that Congress, by vote, not the President, by pen, has control over 80% of the land within the boundaries of Nevada.
Thought of the week…Government is not reason. It is not eloquence. It is force, like fire, a dangerous servant and a terrible master.
– George Washington
1 thought on “No One Asked Me But… (January 4, 2017)”
I understand that quite a few people are aggravated over the decision to designate Gold Butte as a National Monument area, I signed the petition when it was at Sugar’s Home Plate myself because I thought that the timing and the background of it all was ill timed. Calling it things like an imperial decree, and comparing it to tyranny is far fetched though.
It is specifically the Antiquities Act of 1906,54 U.S. Code § 320301, that authorizes the President to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments. The law was passed specifically to deal with people pilfering the historic sites of Native Tribes and to circumvent the destruction of historically, or scientifically valuable areas within the interior of the United States.
The Antiquities Act was challenged of course, in Cameron v. United States and later in Cappaert v. United States. Both parties were perfectly justified in bringing about the challenges, and defeated. Had the decisions gone another way, the South Rim of the Grand Canyon would be a giant pit mine, and Devils Hole would be a giant dry hole where a species was exterminated. All in the name of economic progress and short term thinking without regard to long term consequences.
Article VI case of Cooper v. Aaron is much more appropriate as a frame of reference when it comes to State v. Federal law. We are not a loosely cobbled together collection of independent nations like the EU, nor have we been since that dysfunctional document known as The Articles of Confederation was rightly thrown into the trash bin of our national framework.
The Gold Butte designation was not brought about by “imperial decree” at all, but through the powers granted to the President of the United States, by act of Congress, in accordance with the Constitution and established laws. To state otherwise is nothing more more than inflammatory fabrication. Furthermore, arguments comparing Plessy v. Ferguson with federal and state land issues can only be called, specious and misleading at best.
Having said all of that, I think that the US Government went about this the wrong way in some instances over the years. Just because it’s law does not make it correct or ethical. They should have possibly acted as a binding arbitrator between residents, the local tribes, the State, and various other interests.
We the people are to blame as well. Nevada needs more land, controlled by the the State and more land for private use, but not just to be tossed to anyone with a half cooked and frankly fraudulent claim like the Bundys, or the highest bidder who will extract, exploit, and evacuate leaving the State to clean up the mess.
We don’t need a 21st century American version of Lebensraum for Nevada either, which seems to be what I hear a lot of in these parts lately.
What we do need is to balance development and conservation, tailored to meet the needs of all Nevadans, and like the Moapa Band of Paiutes, who have for far too long been marginalized by many of us here in Moapa Valley.
At some point in the last 30 years or so we’ve stopped talking to each other and started talking at each other and reduced nearly everything to hyper partisan echo chambers. This must end if we’re to survive as a country, let alone as a species.