Harold Pease, Ph. D
Utah stands out in its desire to retain public land not given it when it became a state and in using original intent in interpreting the Constitution, but her leaders do not understand the Constitution well enough to see that the Constitution already corrects the problem if used as designed. This ignorance dangerously undermines the Constitution.
Fourteen of Utah’s highest elected leaders, with sabers rattling threatening retaliation, bemoaned the President’s executive order removing from Utah’s public use an area the size of New Hampshire. Senators Mike Lee and Orrin Hatch plan to reintroduce legislation-exempting Utah from the Antiquities Act. Both hope the Trump Administration will help them reverse the Obama executive order. State Attorney General Sean Reyes wants to sue the federal government but this action failed with respect to the Grand Staircase National Monument. Other options suggested include defunding the monument, or through Congress, reducing its monumental size from 1.35 million acres to something more reasonable. Governor Gary Herbert gave the weakest response, offering no remedy.
All of this anger will result in votes in their next elections but none of it will result in an ounce of change. If not rescinded by Trump, the Monument will still be in place long after these politicians have been replaced. These solutions only complicate the problem enlarging the power of the federal government for the next confiscation challenge whether by Trump or yet a future Clinton or Obama.
Why not use the Tenth Amendment to the Constitution that restricts the federal government, (the executive, legislative and judicial branches) to the enumerated clause of Section I Clause 8, which lists the areas in which the federal government can legislate, execute, and adjudicate? All powers not specifically listed, or added later to the Constitution by way of the Amendment process outlined in Article V, are left to the States.
This clause divides all federal power into the four following areas: Congress has power to tax, pay debt, provide for the general welfare and common defense. So as to restrict the federal government from enlarging its power, which is its natural tendency to do, the last two grants of power of the four each had an additional eight clauses giving clarity to what was meant by general welfare and national defense. Clause 17 restricts the federal government to only 10 square miles for a capital and allows other property for military purposes. Other than this there exists no federal land outside territory awaiting statehood as per Article IV, Section 3, Clause 2.
Even with this clarification states, fearing that the federal government might still like to grow at their expense, refused to ratify the Constitution without additional restrictions harnessing it more fully to the enumerated powers, hence the Bill of Rights. These end with the handcuffs of Amendment 10: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The proper response to the most recent monument declarations, Bears Ears and Gold Butte (and in any other state where the state government has to protect its authority), as is the cases for Utah and Nevada, is to refuse to recognize it and boldly so state. It is quick and final. The solution is definitely not to sue the federal government as this only places the decision in another branch of the same federal government, which almost always rules to increase federal power. Once rendered there, it only makes it more difficult to not comply. It is not to hope that Trump will rescind it because it asks another federal entity to do what the executive branch never had power to do in the first place. It is not to ask Congress to declare that the monuments be smaller in size as that implies that they had the power to create them in the first place. None of these is likely to work. What works is to honor the Constitution and declare boldly that the federal government has no constitutional authority to own, manage or control property outside national defense within its state boundaries.
Founding Fathers Thomas Jefferson, James Madison, and Alexander Hamilton were each especially vocal with respect to states having the authority to “Just Say No!” to federal law not enumerated. Such was used in 1798 in the Kentucky and Virginia Resolves, in 1832 in the Nullification Crisis in South Carolina, and more successfully with the northern states, especially Wisconsin, in 1854 over the highly unconstitutional Fugitive Slave Act. Today 30 states currently have laws legalizing marijuana in some form despite objecting federal law, and most states continue to refuse to implement the federal Real ID Act. Without new amendments to the Constitution these, and many more issues, remain state issues.
Remember the states created the federal government in the first place and they created a system called federalism which recognized the principle of dual sovereignty, neither is master or slave to the other. Each viewed state nullification as an important check on unacceptable federal assumption of state powers. No branch of the federal government, not even the Supreme Court, has the constitutional authority to destroy this check. The Constitution will recover confiscated state property if governors have the fortitude to use it. Tell Governors Herbert and Brian Sandoval to use it.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.