At a glance, his points seem reasonable. However, this sentence is the killer:
“One position, which is current U.S. Supreme Court doctrine, is that the federal government may acquire and own any land it wishes for any governmental purpose, not just for its enumerated powers.”
That has been the consistent approach taken by the US Supreme Court since at least 1911.
That doesn’t mean it is right, but as a practical matter, the court will rarely overturn 100+ years of consistent precedence. If it does so, from what I’ve seen, it only does so to move in a liberal direction - because liberals don’t mind ignoring the Constitution, while conservatives are constrained by it.
If the Bundy or Hage case went before the Supreme Court, Justice Thomas is probably the only justice with the intelligence AND integrity to truly apply the Constitution to the situation, regardless of how that affected the outcome. Scalia might, but he is not as clear headed as Thomas. I’d bet the other 7 wouldn’t even hesitate to find for the government.
In fact, I’d bet Thomas would be the only justice on the Court who would consider taking such a case, which means it would not be heard. And until then, all lower courts are required to follow the precedent set by the Supreme Court for the last 100 years.
Thus, it comes back to the idea that only CONGRESS can do anything, and Congress does not want to. John McCain - one of my two supposedly reppublican senators - could end these abuses by the BLM & USFS this week if he wished. He has enough influence to get serious oversight hearings started, and to pass legislation that would require the BLM & USFS to pay at least some attention to multiple use.
Will he? Not a chance in hell! McCain wouldn’t lift a pinkie to help Tombstone get the water it needs to prevent the town from burning, although the USFS doesn’t really have a legal leg to stand on. A famous TOWN, not a rancher, in his state, with an obvious and critical need to do what they have been allowed to do for over 100 years...and McCain won’t lift a finger!
That is why I won’t vote for ‘whatever republican wins the primary’ any more. I don’t see any difference between McCain and Dingy Harry. I don’t doubt they get along fine, and McCain would vastly prefer to eat dinner with Dingy Harry than with Jim Robinson!
It might be that it will take civil disobedience to make the alphabet agencies wary enough that they won’t continue total abuse of their power. I was opposed to backing Bundy, and I still think his legal argument of not being a US citizen stinks...but the more I think about it, the only hope I see in getting ANY action is civil disobedience. I don’t think there are 5 genuine conservatives in the Senate, and probably no more than 20 tops in the House.
If the group of states meeting over wrongfully held federal lands sues the federal government, then Scotus MUST take the case, if I read the above and other sections of Art II correctly.
Another way would be to start TAXING the Federal government for public lands held that are not held under some enumerated purpose.
Yep. I'm not sure what he means by that, but since a president, according to the Constitution, must be a citizen of the USA, then I assume Bundy believes Nevandans aren't allowed to run for president. Lol.
On the other hand, the Founders did view a "state" as a nation, and the United States, viewed from their perspective, is probably better seen in our day as the "States United".
Each is a sovereign state.
There are two recent cases that could give us an indication about how a Roberts' Court would rule: Marvin M. Brandt Revocable Trust v. United States (March 2014) and PPL Montana, LLC v. State of Montana (February 2012). The following is regarding the latter.
The Supreme Court sided today with a Wyoming landowner who challenged the Forest Service's construction of a bicycle trail on an abandoned railway that slices through his property.xzins: We need a ping list and keeper of. I nominate you. :) I have the SCOTUS ping list and can ping them when necessary regarding "Supreme Court doctrine." (I think I like that phrase.)By an 8-1 vote, the justices held in Marvin Brandt Revocable Trust v. United States that the government had no right to Brandt's Fox Park tract once the railroad formally abandoned the property around 2004. The decision reverses a lower federal appellate court ruling in favor of the Forest Service.
Chief Justice John Roberts, writing for the majority, classified the railroad right of way as an easement that reverted back to Brandt when the railroad pulled up its ties.
The government, Roberts wrote, lost because of its arguments in a previous Supreme Court case -- 1942's Great Northern Railway Co. v. United States. That case centered on whether railroads were given rights to subsurface minerals when the government granted a right of way.
The government won in that case by arguing that railroads didn't get mineral rights and classified rights of way as easements, meaning a temporary right to cross the land.
The court "cannot overlook the irony," Roberts said, of the government now basing its arguments on other Supreme Court cases.
"The government loses that argument today, in large part because it won when it argued the opposite before this court more than 70 years ago," he wrote.
"Those basic common law principles resolve this case. When the Wyoming and Colorado Railroad abandoned the right of way in 2004, the easement referred to in the Brandt patent terminated. Brandt's land became unburdened of the easement, conferring on him the same full rights over the right of way as he enjoyed over the rest of the Fox Park parcel."
(...)
"The chief may have taken this opinion to send a message to the [solicitor general] that it should not be making arguments that depend on a complete about-face from prior arguments that have formed the basis for long-standing precedent," said Tim Bishop of Mayer Brown, a Supreme Court industry advocate who's not involved in the Brandt case. "Someone at [the Department of Justice] should have stood up to [the Bureau of Land Management] and Interior and explained that there was no plausible basis for arguing that the right of way was more than an easement." Source