Oh, Aaron Walker. Please don't practice law. Ever. Even academically on your blog. You're just so bad at it. You embarass yourself and the profession.
Yes, folks, the World's Worst Lawyer™ is back at it again. Taking a break from his Brett Kimberlin obsession, Aaron Walker tackles current events — specifically, the Cliven Bundy issue in a terribly-reasoned and tragic post entitled "Is Cliven Bundy Right?"… which is Walker's way of saying, "Cliven Bundy is right and I'll show it even if I have to use the most tortured and indeed untruthful legal reasoning available to me."
But first, Walker, like most conservatives last week, must do the necessary throw-Bundy-under-the-bus-for-his-racism dance:
There has been some attempt to rehabilitate what he said, such as here, but at best it only mitigates what is still a pretty racist and ignorant thing to say. No, there is zero chance that black people were better off under slavery and you have to be willfully ignorant of the evil of slavery to even entertain the thought.
I give Walker a little credit here. Normally, when a right wing hero is accused of racism, Walker tries to turn it around and accuse a black person of reverse racism. But, seeing no black person in the Bundy scandal, I guess Walker is forced to admit that Bundy is indeed a racist.
And props to Walker for admitting this:
When it comes to the legal issues his racism is beside the point. If a government lawyer brought it up in court, it would annoy the judge by being irrelevant. Or to quote from Mark Steyn:the reason the standard representation of justice in statuary is a blindfolded lady is because justice is supposed to be blind: If you run a red light and hit a pedestrian, it makes no difference whether the pedestrian you hit is Nelson Mandela or Cliven Bundy. Or at least it shouldn't: one of the basic building blocks of civilized society is equality before the law.
United States v. Gardner, 107 F.3d 1314 (9th Cir. 1997), where the federal government prevailed on facts similar to Bundy’s. In Gardner, the US Forest Service issued a ten-year permit allowing the Gardners to graze their cattle in the Humboldt National Forest. Because of a fire that burned over 2000 acres of land, the Forest Service and Nevada Department of Wildlife closed off the land to grazing for two years. Nevertheless, after a short period of time, the Gardners ignored the closure and resumed grazing. The Forest Service revoked the Gardner’s permit. The Gardners argued that the federal government was not the land owner, and that the land belonged to the state of Nevada. The federal district court disagreed, and the 9th Circuit court affirmed the district court’s holding.
Bundy’s and Gardners’ arguments were similar, and they both lost. The courts ruled: 1) that the federal government was authorized to retain public lands for its own purposes, and was not required to hold land for the establishment of future states; 2) that the Equal Footing Doctrine did not operate to give the state title to the public lands within its boundaries; and 3) that federal ownership of public lands did not encroach upon the core powers reserved for the states under the Tenth Amendment to the Constitution. There were other arguments and discussions, but these were central.
Let us break that out again. The Bundy/Gardner argument is a losing argument, said the 9th Circuit, because
(a) the federal goverment is authorized to retain public lands for its own purposes; it is not required to give that land to states or future states
(b) the Equal Footing Doctrine did not operate to give the state title to those federally-held public lands within its borders; and
(c) the federal government can own lands within a state, and doing so doesn't violate the 10th Amendment.
So… Walker has laid out his mission. To show that one or all of these things is wrong.
And so the World's Worst Lawyer™ takes a closer look at U.S. v. Gardner, and he sees a reference to an earlier case, called Pollard's Lessee v. Hagan.
The claim by Gardners that it is the duty of the United States to hold public lands in trust for the formation of future states is founded on a case dealing with land acquired by the United States from the thirteen original states. In that case, Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845), the Supreme Court discussed the extent of the United States' authority over lands ceded to it from Virginia and Georgia to discharge debt incurred by those states during the Revolutionary War. The Court stated that the United States held this land in trust for the establishment of future states. Id. 44 U.S. (3 How.) at 222. Once those new states were established, the United States' authority over the land would cease. Id. at 221-23. This decision was based on the terms of the cessions of the land from Virginia and Georgia to the United States. Before becoming a state, however, Nevada had no independent claim to sovereignty, unlike the original thirteen states. Therefore, the same reasoning is not applicable to this case, in which the federal government was the initial owner of the land from which the state of Nevada was later carved.
That's what the Gardner court wrote — that the reasoning in Pollard's Lessee case is not applicable to the Gardner case. Why not? Because in the Pollard case, there was a particular contract involved.
And Walker notes that.
Let's make this clear: The reason why the land in the Pollard case went to Alabama is because the federal government did not own it in the first place. That's NOT how it is with the land in Nevada (for Gardner and Bundy).
Walker relies on some dicta in Pollack that says:
We, therefore, think the United States hold the public lands within the new states by force of the deeds of cession, and the statutes connected with them, and not by any municipal sovereignty which it may be supposed they possess, or have reserved by compact with the new states, for that particular purpose. The provision of the Constitution above referred to shows that no such power can be exercised by the United States within a state. Such a power is not only repugnant to the Constitution, but it is inconsistent with the spirit and intention of the deeds of cession.
Walker zeros in on the language above that says "repugnant to the Constitution" and concludes that what the Pollard court was saying was that the United States MUST give federal land to the state. In fact, what the Pollard court was saying is that it is repugnant to the Constitution for the federal goverment to claim land that was once held by the sovereign state of Alabama (i.e., Alabama existed prior to the United States).
Walker then discusses the Equal Footing Doctrine, completely neglecting to mention one thing: it applies to navigable waters. That was the controversy in Pollard — navigable waters. We weren't talking about grazing land. So… another reason why Pollard doesn't apply.
And indeed, the court in Gardner did not apply it. Nor did the court in Bundy.
Now, in Bundy's case, IF the land in question once belonged to Nevada (rather than Mexico), and IF we were talking about navigable waters, THEN Pollard and the Equal Footing Doctrine might apply. But since we're not, then what Pollard (as well as the Equal Footing Doctrine) has to say is irrelevant. The federal government can own federal land within a state. Period.
Interestingly, the World's Worst Lawyer™ refutes his own point later on, when he admits:
And it’s not to say that the Federal Government can’t own land. Obviously they can….
BzZzzzt! Stop. There. Stop. That's it. That's the whole Bundy case. Bundy says the federal government can't own land. And yes, Walker. Of COURSE he is wrong. There's no trick legal arguments, so stop waiving your arms (and specious reasoning) to try to make one.
But no, Walker continues:
And it’s not to say that the Federal Government can’t own land. Obviously they can, and they can even take it from the owner—be it a sovereign state or a private owner—if needed. So, for instance, if there is a hill over a harbor that is a particularly good place for a fort, then the U.S, military can just take the land from whomever owns it (subject to just compensation and all that). And the government can acquire and keep land for other purposes, too. I don’t know if my local post office owns the land it sits on or rents it, but I see no constitutional obstacle to owning it. But the power to own land is not a power in and of itself, but rather a power implicit to the extent that it is necessary and proper to put other powers into effect. So the power of the military to protect this country and the power of the post office to do what it does justifies it. But it can’t be “we are owning this land just because.” That isn’t good enough.
Now, at the point, you know he's just pulling it all out of his ass, because he's not even TRYING to support his position with legal citations.
He's saying that the federal government can own land, but they have to have a reason for it — something more than "just because". Of course, even bad lawyers know that Walker has confused federal ownership of land with the taking of private land under eminient domain. The federal government does need a reason to take private land using its eminent domain powers. But that's not an issue here with the land in Nevada. It didn't take that land from anybody. It was federal land before Nevada existed. And the government doesn't need to justify why it owned it, and continues to own it.
Here's the relevant clause of the U.S. Constitution. Read it. Does it put forth any requirement that the federal government provide some justification for owning land?
The 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 construed as to Prejudice any Claims of the United States, or of any particular State.
No. It just gives Congress the power to make rules and regulations regarding federal property. That's it.
So Walker is just making shit up. He doesn't like the idea of the federal government, so he doesn't like the idea of the federal government owning a supposedly "obscene" amount of land. But that's not a legal argument; that's a political argument, and a fairly radical one.
The federal government has always controlled great expanses of land, and a damn good thing too. Good for agriculture, the enviroment, the economy, and infrastructure. (How does Walker think clean water gets to the dry regions of much of the West? Magic? The invisible hand of Adam Smith?)
What's most amazing about Walker's legal analysis is that he has no idea who he has gotten into bed with. The notion that the federal government cannot own federal land is as radical a viewpoint as those who claim that the income tax is unconstitutional. It's 9/11 Truther territory. Walker thinks it has something to do with the supposed liberalism of the Ninth Circuit, but fails to note that two of the three judges on the panel were Republican appoointees (one by Nixon and one by Reagan).