Americans in the Western States Are Denied Equal Rights, by GEORGE R. WENTZ JR & JOHN W. HOWARD 8/2/16
Washington curtails the ability of local governments to generate
tax revenue for basic services.
Over the years, America has seen steady progress on the principle
that individuals enjoy equal rights under the law. But that principle is
violated daily for the tens of millions of people who live in the twelve
western states where most of the land is claimed by the federal government.
What does federal control of most of the land within a state have to do with
equal rights?
The answer may surprise you. First, consider what the Supreme
Court refers to as the “police power.” This is the power to legislate regarding
the health, safety, and welfare of residents of a state.
As Chief Justice John Roberts put it in NFIB v. Sebelius, the
first Obamacare case, “state sovereignty is not just an end in itself: Rather,
federalism secures to citizens the liberties that derive from the diffusion of
sovereign power.” New York v. United States, 505 U.S. 144, 181
(1992) . . .
Because the police power is controlled by 50 different States
instead of one national sovereign, the facets of governing that touch on
citizens’ daily lives are normally administered by smaller governments closer
to the governed.
The Framers thus ensured that powers which “in the ordinary course
of affairs, concern the lives, liberties, and properties of the people” were
held by governments more local and more accountable than a distant federal
bureaucracy. The Federalist No. 45, at 293 (J. Madison).
The independent power of the States also serves as a check on the
power of the Federal government: “By denying any one government complete
jurisdiction over all the concerns of public life, federalism protects the
liberty of the individual from arbitrary power.” Bond v. United States, 131 S.
Ct. 2355, 2364 (2011).
But in Utah, for example, where over 66 percent of the land is
claimed by the federal government, unelected federal bureaucrats exercise
police power over far more of Utah than the governor, state legislators, and
county commissioners do. Citizens of Utah are routinely entangled in vast
federal bureaucracies when it comes to issues that “in the ordinary course of
affairs” concern their “lives, liberties, and properties.”
They must deal with the Bureau of Land Management, the National
Forest Service, the EPA, and a host of other federal bureaus, agencies, etc..
Routine local land-management issues quite literally become federal cases.
One government — the federal government — has complete
jurisdiction over all the concerns of public life in over 66 percent of the
state, exposing Utah citizens to solidified “arbitrary power” in a way that no
citizen of New York State, for example, ever encounters. There the federal
government claims less than one quarter of 1 percent of the land, and New
Yorkers can deal with elected local officials to solve the vast majority of
their problems. Nye County, Nev., cannot tax the 92 percent of its land that is
claimed by the federal government.
Just ask the citizens of San Juan County, Utah, who have had their
homes raided by heavily armed Bureau of Land Management agents and have seen
one of their county commissioners prosecuted and sentenced to ten days in
prison and fined $96,000.00 for riding an all-terrain vehicle on a county
water-line-maintenance road that had been unilaterally closed down by the feds.
A county sheriff in New York who raided homes or arrested a county
commissioner would quickly be voted out of office. The citizens of San Juan
County have no such recourse.
Instead of exercising their political franchise to protect their
“lives, liberties and properties,” they must fight the full weight and
unlimited resources of the federal government. Or consider the ability to
self-govern, the cornerstone of citizenship.
The Supreme Court has described the ability to tax as a necessary
sovereign right of each state. And property taxes are the primary tax on
which local governments depend. But Nevada is deprived of the ability to tax
over 83 percent of the land within its borders. Even worse, Nye County, Nev.,
cannot tax the 92 percent of its land that is claimed by the federal
government.
Just imagine trying to fund roads, schools, libraries, police
departments, fire departments, and parks-and-recreation departments on taxes
generated by less than 8 percent of the land within your county.
The federal government explicitly recognized this inequity in 1976
when it passed the Federal Land Policy and Management Act. To try to compensate
local governments, a sort of federal welfare program, Payment in Lieu of Taxes
(PILT), was established. But PILT payments are a poor substitute for property
taxes. First, PILT payments are insufficient. They pay local governments far
less than what property taxes would bring in.
For example, Kane County, Utah, generates much more revenue from
taxing the less than 8 percent of privately owned land within its borders than
it receives in PILT payments on the more than 90 percent of its land claimed by
the federal government. Second, PILT payments are uncertain because
eastern-state delegations routinely prevent Congress from issuing the payments,
in order to pressure western delegations on pending votes. Third, governments
of western states cannot spend PILT dollars the way eastern states spend tax
dollars, because policy on how PILT payments can be spent is set by the federal
government, not local citizens. In short, PILT payments make local governments
in the west dependent on and beholden to the federal government, unlike local
governments in the east, which are free to raise and spend taxes as they see
fit.
As a result, westerners are denied an essential right enjoyed by
citizens in the east: the right to self-govern. RELATED: The Federal Government
Should Follow the Constitution and Sell Its Western Lands They are also denied
certain opportunities to get ahead in life. Eastern states routinely take land
for public improvements designed to generate jobs, industry, and commerce. But
western states cannot condemn federally claimed land for public improvements.
Imagine trying to build a road, power line, broadband system, or
telecommunications system in a state where you can’t throw a stone without
running into federally claimed land. It is just not possible. Idaho recently
embarked on a project to deliver additional electrical power to the state.
Owing to the state’s inability to condemn federal land (over 61
percent of the state), the path of the power line had to tack jaggedly back and
forth across the state. The additional length of the power line taken up in
avoiding federal land reduced by two thirds the power that the project could
deliver.
Try creating jobs, industry, and commerce with inadequate
electricity. This would have never happened in New York, where the state would
simply have condemned the lands that lie in the most efficient and effective
path.
Let’s consider the cumulative impact that the denial of all these
rights have on westerners: the denial of equal political power. Imagine trying
to convince your adult children to stay in a town they know cannot provide a
thriving economy or even the basic amenities of life, such as electrical power,
good roads, cell service, and broadband. Imagine attracting new people to a
state without the ability to determine its own future — a state dependent on
the debt-burdened federal government for welfare checks to try to survive.
Impoverished western counties dominated by federally claimed land
are exporting children and importing poverty. Their population does not grow.
And how is political power at the federal level shared among the states?
Congressional seats and Electoral College votes are allocated on the basis of
population according to the Census. Population is the constitutional currency
in the competition among the states for political power. And western states are
deprived of that currency because they have been deprived of all the sovereign
rights discussed above.
RELATED: Oregon Standoff Reveals There Is No Adult Supervision of
Federal Agencies in the West The Framers were concerned about this prospect. On
September 5, 1787, the Constitutional Convention was considering granting the
federal government the ability to purchase land within a state. According to
the convention record, Elbridge Gerry of Massachusetts “contended that this
power might be made use of to enslave any particular State by buying up its
territory, and that the strongholds proposed would be a means of awing the
State into an undue obedience to the Genl. Government.” Western states and
their citizens are not equal. Contrary to the intent of the Framers, they are
awed “into an undue obedience” to the federal government. As a result, the
federal government was barred from purchasing land within a state without the
consent of the state legislature. That protection is included in Article I,
section 8, clause 17, now known as the enclave clause. However, western states
have never been given dominion over the land within their borders, and the
result that Mr. Gerry feared has been achieved.
Western states and their citizens are not equal. Contrary to the
intent of the Framers, they are awed “into an undue obedience” to the federal
government. Those who raise this issue are often vilified as radical extremists
by eastern elites. For example, in the Wall Street Journal (April 19, 2016),
Interior Secretary Sally Jewell was quoted as referring to “an
extreme movement to seize public lands.” That phrase mischaracterizes the
careful analysis conducted by western states in their attempt to achieve equal
rights for their citizens:
The right to have routine matters involving their lives,
liberties, and properties determined by local officials whom they elect and can
vote out of office. The right to self-determination. The equal right to
raise taxes to pay for roads, schools, libraries, police departments, fire
departments, and parks-and-recreation departments. The right of local
government to create a strong economy. And, finally, the right to be
represented in the halls of Congress equally with the citizens of the 38 states
not dominated by the federal government.
Equality is not an extreme idea. It is the basis on which our
nation was founded. In a long, unbroken line of cases extending from 1845 to
the present day, the Supreme Court has consistently held that the Constitution
demands equality with respect to the sovereign rights of states. All of the
rights discussed above have been recognized by the Supreme Court as sovereign
state rights.
Their denial in some states results in the unequal treatment of
the citizens of those states. In Shelby v. Holder, 133 S.Ct. 2612 (2013), the
Supreme Court overturned the pre-clearance provisions of the Voting Rights Act,
which singled out certain states for disparate treatment, and in the course of
his argument for the majority, Chief Justice Roberts noted that not only do States
retain sovereignty under the Constitution, there is also a “fundamental
principle of equal sovereignty” among the States.
Over a hundred years ago, this Court explained that our Nation
“was and is a union of States, equal in power, dignity and authority.” Coyle v.
Smith, 221 U. S. 559, 567 (1911). Indeed, “the constitutional equality of
the States is essential to the harmonious operation of the scheme upon which
the Republic was organized.” The fundamental principle of equal sovereignty
remains highly pertinent in assessing subsequent disparate treatment of States.
Id., at 580.
Today, twelve western states are being treated disparately on
issues relating to their sovereignty. Millions of citizens are denied equal
rights, rights enjoyed by citizens of eastern states. It is a result that the
Constitution does not allow. It is wrong for eastern politicians and federal
agencies in D.C. to continue to dismiss this issue. It is time for a
reasoned discussion about the denial of equal rights for citizens of western
states — and about how to correct the disparity. —
George R. Wentz Jr. is a lawyer with the Davillier Law Group in
New Orleans. John W. Howard is a constitutional scholar and litigator in San
Diego.
http://www.nationalreview.com/article/438586/western-states-federal-lands-conflict-their-sovereignty
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