Cliven Bundy’s Justifiable Defiance: Part II

At the end of Part One of this column, I asked: Was the law on the government’s side and not on Cliven Bundy’s? What kind of law is it? And how is it being enforced throughout the country?

Few sitting politicians have remarked on the Bundy/BLM standoff. However, Christopher Agee, in his Western Journalism article of April 18th, “Obama Accused by Congressman of Illegal Action at Bundy Ranch,” reported:

Immediately after what many considered a victory against a tyrannical federal agency, a number of leftist voices – most notably, Sen. Harry Reid – indicated the action against this family will continue. In response, Texas Republican Rep. Steve Stockman sent a letter to Barack Obama, Department of the Interior Sec. Sally Jewell, and BLM Director Neil Kornze, laying out his position that any such action by the agency would violate the U.S. Constitution….

He cited the limited powers granted to the federal government, noting the bureau has no “right to assume preemptory police powers, that role being reserved to the States,” and explained “many federal laws require the federal government to seek assistance from local law enforcement whenever the use of force may become necessary.”

The letter included a section of the U.S. Code — 43 U.S.C. Section 1733, Subsection C — stating exactly that point. [Emphasis Stockman’s]

When the Secretary determines that assistance is necessary in enforcing Federal laws and regulations relating to the public lands or their resources he shall offer a contract to appropriate local officials having law enforcement authority within their respective jurisdictions with the view of achieving maximum feasible reliance upon local law enforcement officials in enforcing such laws and regulations.”

The local law enforcement authority in this instance is the Sheriff of Clark County, Nevada, Douglas C. Gillespie, who, apparently intimidated by the BLM (Bureau of Land Management) as the protesters were not, refused to intervene and demand that the illegal BLM vigilantes leave.

Gillespie, however, conspicuously took a back seat to BLM forces during the standoff.

“Indeed,” Stockman wrote, “the exact type of crisis that the federal government has provoked at the Bundy ranch is the very type of incident that Congress knew could be avoided by relying on local law enforcement officials.”

The stated purpose of the correspondence is for the Obama administration “to bring the BLM into compliance with 43 U.S.C. Section 1733.”

Which, if we know anything about President Obama, isn’t going to happen. An abuse of federal powers is, by his authoritarian lights, an exercise of executive privilege or an action that transcends Constitutional authority.

John Fund, formerly of the Wall Street Journal, penned an interesting April 18th piece on the growth of government SWAT teams, “The United States of SWAT? Military-Style Units from Government Agencies are Wreaking Havoc on Non-Violent Citizens” for National Review Online.

Regardless of how people feel about Nevada rancher Cliven Bundy’s standoff with the federal Bureau of Land Management over his cattle’s grazing rights, a lot of Americans were surprised to see TV images of an armed-to-the-teeth paramilitary wing of the BLM deployed around Bundy’s ranch.

They shouldn’t have been. Dozens of federal agencies now have Special Weapons and Tactics (SWAT) teams to further an expanding definition of their missions. It’s not controversial that the Secret Service and the Bureau of Prisons have them. But what about the Department of Agriculture, the Railroad Retirement Board, the Tennessee Valley Authority, the Office of Personnel Management, the Consumer Product Safety Commission, and the U.S. Fish and Wildlife Service? All of these have their own SWAT units and are part of a worrying trend towards the militarization of federal agencies — not to mention local police forces.

(I provide a link to a list of all these agencies in my June 2013 Rule of Reason column, “The Stinking Badges of Our Federales.” Go here for the list.)

Fund writes:

The proliferation of paramilitary federal SWAT teams inevitably brings abuses that have nothing to do with either drugs or terrorism. Many of the raids they conduct are against harmless, often innocent, Americans who typically are accused of non-violent civil or administrative violations.

Underscoring Christopher Agee’s point, Fund noted:

Brian Walsh, a senior legal analyst with the Heritage Foundation, says it is inexplicable why so many federal agencies need to be battle-ready: “If these agencies occasionally have a legitimate need for force to execute a warrant, they should be required to call a real law-enforcement agency, one that has a better sense of perspective. The FBI, for example, can draw upon its vast experience to determine whether there is an actual need for a dozen SWAT agents.”

Since 9/11, the feds have issued a plethora of homeland-security grants that encourage local police departments to buy surplus military hardware and form their own SWAT units. By 2005, at least 80 percent of towns with a population between 25,000 and 50,000 people had their own SWAT team. The number of raids conducted by local police SWAT teams has gone from 3,000 a year in the 1980s to over 50,000 a year today.

But whether they are actual federal SWAT teams, or local police hybrids, they are being used more and more to enforce law in a familiar totalitarian manner:

Once SWAT teams are created, they will be used. Nationwide, they are used for standoffs, often serious ones, with bad guys. But at other times they’ve been used for crimes that hardly warrant military-style raids. Examples include angry dogs, domestic disputes, and misdemeanor marijuana possession.

Fund cites the Heritage Foundation which regards as “inexplicable” the question of why so many federal agencies need to be battle-ready. Brian Walsh of that organization noted, among other frightening things:

In yet another Orwellian development, the Education Department IG provides an anonymous tip line encouraging Americans to inform on each other. This is reminiscent of the Obama White House asking Americans in 2010 to report on friends and neighbors who said anything “fishy” about Obamacare in private conversations.

The Federal Law Enforcement Training Center says that it trains agents for “over 80 federal agencies.” These include the Secret Service, Bureau of Prisons, and similar agencies that one would expect.

But the list includes dozens of federal agencies with no business training and fielding armed officers. Who wants early-morning armed break-ins by the Department of Agriculture, Railroad Retirement Board, Bureau of Land Management, Tennessee Valley Authority, Office of Personnel Management, and U.S. Fish and Wildlife Service?

It is “inexplicable” only if one doesn’t acknowledge the expansion of federal powers which dovetails into virtually every nook and cranny of American life.

Has the federal government any legal right to “own” or control this much land, and to claim that the states have no say in the matter? No. But, the feds just take it anyway. This is the behavior of tyranny in the name of the “public interest.” The indefatigable “Hilda,” mentioned in Part I, consulted the Justia US Law site, and found this information about Nevada. She wrote:

The State of Nevada has a legal claim to the public land retained by the Federal Government within Nevada’s borders because:

“(a) In the case of the State of Alabama, a renunciation of any claim to unappropriated lands similar to that contained in the ordinance adopted by the Nevada constitutional convention was held by the Supreme Court of the United States to be void and inoperative because it denied to Alabama an equal footing with the original states in Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845);

(b) The State of Texas, when admitted to the Union in 1845, retained ownership of all unappropriated land within its borders, setting a further precedent which inured to the benefit of all states admitted later on an equal footing ; and

(c) The Northwest Ordinance of 1787, adopted into the Constitution of the United States by the reference of Article VI to prior engagements of the Confederation, first proclaimed the equal footing doctrine, and the Treaty of Guadalupe Hidalgo, by which the territory including Nevada was acquired from Mexico and which is the supreme law of the land by virtue of Article VI, affirms it expressly as to the new states to be organized therein.”

The federal government’s claim to the state’s land is as fanciful as people believing that Area 51 is where the government hides evidence of alien spaceships. It’s a kind of “urban legend.” Furthermore, the Constitution specifically states, in Section 3, Clause 1:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned was well as of the Congress.

This has been ignored by the federal government, and to the detriment of not only the states, but of all Americans. The federal government has, for all practical purposes, erected its own states within and at the junctures of states, governed by federal laws enforced by the BLM, the National Park Service, the EPA, and myriad other federal agencies. For the history of this incremental, unconstitutional land-grab, see the history of specifically the BLM here.

National Review Online (NRO) is regarded as the chief herald and articulator of conservative causes and viewpoints. Yet its writers can’t make up their minds about Cliven Bundy and the whole BLM issue. Their timidity is conspicuous, but also not a little snarky. Kevin D. Williamson, in his April 15th article, “The Case for a Little Sedition,” remarked:

…There are of course questions of prudence and proportion to be answered here, and though I note that he uses the very strong phrase “lawless government,” I sympathize with Mr. Lowry’s desire that both sides should follow the law….

The thing that conservatives seek to conserve is the American order, which (1) insists that we are to be governed by laws rather than by men and (2) was born in a violent revolution. Russell Kirk described the conservative ideal as “ordered liberty,” and that is indeed what we must aim for — keeping in mind that it is order that serves liberty, not the other way around….

By some estimates, superfluous federal holdings amount to trillions of dollars in value. Surely not every inch of that 87 percent of Nevada under the absentee-landlordship of the federal government is critical to the national interest. Perhaps Mr. Bundy would like to buy some land where he can graze his cattle.

It’s Williamson’s tone that is repulsive, not the content on his article. Why do so many “conservatives” try to sound like Jon Stewart or David Letterman?

Meanwhile, Charles C.W. Cooke, in his April 15th NRO article, “The Problem with Cliven Bundy,” worries that Bundy’s actions may cause more trouble:

…Bundy’s story is that of a family that has raised cattle in the West since before the automobile was invented being turned into a grotesque social experiment. Nevertheless, as one of the better of those statesmen once said, this is a nation with a “government of laws and not of men” — and not the other way around — and it seems to me that this principle should not be considered null and void because one of those men happens to have an agreeable tale, a photogenic complaint, and a romantic genealogical past.

That there is a point beyond which the state may not advance without expecting legitimate pushback is acknowledged by even the most committed of the state’s enablers. Indeed, this principle is baked into America’s instruction manual — albeit with a caveat. “Whenever any Form of Government becomes destructive,” the Declaration reads, “it is the Right of the People to alter or to abolish it, and to institute new Government.” But it also chides the hotheaded among us, inviting us to remember that “prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes.” As far as we know, Bundy is not set on starting a revolution.

When can one refuse to obey the law without expecting to bring the whole thing down? Certainly such instances exist: I daresay that I would not stand idly by quoting John Adams if a state reintroduced slavery or herded a religious group into ovens or even indulged in wholesale gun confiscation. But Bundy’s case is not remotely approaching these thresholds. Are we to presume that if the government is destroying one’s livelihood or breaking one’s ties with the past, one can revolt? If so, one suspects that half the country would march on Washington, with scimitars drawn, and that West Virginia would invade the Environmental Protection Agency.

As government expands and civil society retreats, bad laws pile atop bad laws, and the cause for dissent is magnified and deepened. Cliven Bundy has been dealt a raw hand by a system that is deaf to his grievances and ham-fisted in its response. But this is a republic, dammit — and those who hope to keep it cannot pick and choose the provisions with which they are willing to deign to comply.

I don’t know, Mr. Cook. Is this still a “republic,” or is it a “democracy” governed by Marxists, Progressives, and vacillating conservatives afraid of their own shadows? I would say the latter. When is it morally proper to refuse to comply with the bullying commands of a rampaging Goliath? Who gave the federal government aegis over so much land and so many industries, such as the energy or power industry? Perhaps it was some ambiguously worded or sloppily interpreted clauses in the Constitution. Chief Justice John Roberts was not the first to quibble over “definitions” and “meanings.”

Back to U.S. Senator Harry Reid, the one who called the Bundy protestors “domestic terrorists.” Reid has a history of hating coal. GOPUSA reported in September 2012, in “Harry Reid demands closure of coal-fired power plant“:

U.S. Sen. Harry Reid on Tuesday called for the closure of a coal-fired power plant outside Las Vegas, saying he expects opposition from NV Energy Inc. but the facility is antiquated and a health risk to American Indians who live nearby. “There is no clean coal,” the Senate Democratic leader declared after meeting with several members of the Moapa Band of Paiutes who live near the Reid Gardner station and a handful of representatives of the Sierra Club and Nevada Conservation League who want the plant to close.

“We have to stop further degradation of the land and air as a result of burning coal,” Reid said. “The solution is to close the plant. We want the boilers shut off.”

A Republican Party spokesman, Darren Littell, accused Reid of wanting to throw 150 people out of work in a state where unemployment tops 12 percent.

Reid wants the boilers shut off. Of course, his concerns about the Paiutes and the environment had nothing to do with his wanting to convert BLM land into solar, wind, and geothermal power sources. If you believe that, you believe in the Moon People. See James Simpson’s, April 16th WND article, “Clinton/Obama/Cronies Behind Bundy Showdown.” However, Reid got his way.

The Las Vegas Sun reported in its June 4th article, “NV Energy Bill wins passage, signaling state’s shift from coal” reported:

Legislators have officially moved Nevada out of the coal business. In a vote Monday night, the Assembly approved a landmark energy shift away from coal-fired power plants like Reid Gardner in Clark County and mandated investment in renewable energy and natural gas. [Reid Garner was no relation to Harry Reid]….

While Nevada has long had a policy to invest in renewable energy, it has never before excluded a fossil fuel like coal from its energy portfolio. The policy shift comes with significant political weight behind it: NV Energy, U.S. Sen. Harry Reid, D-Nev., Republican Gov. Brian Sandoval, the state’s major casinos, the environmental lobby, and major labor unions all support the move.

In the meantime, and finally, here is a larger connection between Cliven Bundy, Harry Reid, and the fact that the federal government has taken over realms over which it was never intended to reign supreme or have anything to say at all about. The Wall Street Journal reported on April 18th that “Obama Extends Review of Pipeline Project“:

The Obama administration is indefinitely extending its review of the Keystone XL pipeline, likely delaying a decision on the project until after November’s U.S. midterm elections.

The State Department, which has jurisdiction over TransCanada Corp.’s TRP.T-0.33%, 1,700-mile long pipeline project because it crosses the Canadian-U.S. border, cited as a key reason ongoing litigation over a Nebraska law that allowed the pipeline’s route through the state.

We live in a command, by-your-leave economy and political state (that is, a fascist one), dependent on the whims and fortunes of political parties, lobbyists, and corrupt politicians.

The pipeline would send more than 700,000 barrels of carbon-heavy oil from Canada’s oil sands to Gulf Coast refineries in the U.S….Business interests contend it will create jobs and offer a safer alternative than transporting the oil by rail.

The decision could help the Obama administration sidestep for now a tricky political issue that has divided the Democratic Party in an election year.

If that weren’t bad enough, we have creeping censorship to contend with. Mark Horne of Political Outcast reported in his April 2014 article, “Senate Dems Ready to Smash 1st Amendment for TV, Radio, Internet.”

No, the bill doesn’t enforce open censorship yet, but that’s never how it starts. …[T]he Hate Crime Reporting Act of 2014 demands the tracking of so-called “hate speech” without any enforcement yet.

If Senators Ed Markey (D-MA) and Rep. Hakeem Jeffries (D-NY) were looking for a way to rile talk radio hosts, their Hate Crimes Reporting Act seems like a good way to get the job done.  With bills in the House and Senate, the lawmakers would direct the National Telecommunications and Information Administration (NTIA) to “analyze” media outlets — including radio — to determine if they’re working to “advocate and encourage” hate crimes.

Tying their bill to this week’s alleged white supremacist shootings in Kansas, Markey says it is “critical to ensure the internet, television and radio are not encouraging hate crimes or hate speech.”  He brushes aside expected First Amendment arguments, saying “criminal and hateful activity” isn’t covered by the Constitution.  The bill would look closely at discussions related to gender, race, religion, ethnicity and sexual orientation. [Emphasis Horne’s]….It gives the government a new tool to force an “orthodoxy” on the populace in the name of a recent crime that had absolutely nothing to do with talk radio.

The next thing you know, the NTIA will have its own SWAT team, ready to raid Rush Limbaugh, Mark Levin and Michael Savage. And I’m sure there are plenty of armed-to-the-teeth men who’d like to pat down Megyn Kelly TSA-style for her ill-advised “hate speech.” After all, when she asks so many inconvenient questions of taqiyya-happy Ibrahim Hooper of CAIR, isn’t she encouraging “hate crimes” against Muslims? Isn’t reasoned inquiry a form of “criminal activity”? To Hooper, to Markey, to Jeffries, yes, it is.

The next step, as Horne suggests, is for the government to want to “track” what’s said in print, as well. Any words written and published in support of Cliven Bundy and critical of the BLM, can be frowned upon and perceived as encouraging “domestic terrorism” and “hateful activity.” I’m sure Senator Harry Reid will vote in favor of the Hate Crimes Reporting Act. And then, as the BLM did, he’ll want to see vocal Americans rounded up and corralled in another “First Amendment” cattle pen.

Ready for the slaughter.

  • Lionell Griffith

    The obligation to follow The Law resides also in the law maker. A law is not simply anything the law maker calls a law. If the so called law is not just in that it violates fundamental individual rights, it is nothing but a facade of despotism. It has nothing to do with lawful behavior and everything to do with arbitrary power and control by the government over the individual.

    In our “progressive” modern state, a thing is supposed to become what it is called rather than what it actually is. The government acts as if it is the final authority over reality and can commands that reality obey its arbitrary whim. Interestingly, reality doesn’t care. It continues to be exactly what it is and becomes only what it can become without regard to the demands and wishes of our putative leaders. The unintended side effects are coming at us at full speed. The outcome will be the ultimate “interesting” of that ancient Chinese curse: “May you live in interesting times.”

  • DogmaelJones1

    Two thumbs up for your comment, Lionell.

  • writeby

    A couple of other points re: Bundy, Ed:

    Todd Devlin County Commissioner in Prairie County, Montana, asked a BLM official: “Is it possible that this guy (Cliven Bundy) has prescriptive rights?”

    The BLM official responded: “We are worried that he might and he might use that defense.”

    BTW, having lived in “Fatuous” Las Vegas during his election campaign, I can tell you Gillespie doesn’t look any father than Red Rock Canyon.

    Finally, as for National Review, they’re only good at smearing Ayn Rand. Those that bite the hand that feeds them are exceptional at licking the boots that kick them.

  • DogmaelJones1

    John Fund’s NRO column was too good to pass up. Yes, I know about NRO’s Ayn Rand “record.” But I would have cited Fund’s article even had it appeared in the New York Times.

  • DogmaelJones1

    Also, I do score the two NRO writers, Cook and Williamson, on their timidity on the Bundy story.

  • Steven Smith

    Excellent comment.

  • Philip Meyer

    In order for market capitalism to function, you need to be able to enforce contracts and, for better or worse, contract enforcement relies on the courts. If Bundy can be free to ignore court rulings, where would it end? If a renter decides he doesn’t want to pay rent anymore and his landlord gets a court order to evict him, is it okay for the renter to refuse simply by saying he doesn’t recognize the court’s jurisdiction?

  • mkkevitt

    I should say, & I do say, I’m not really against the long length of these postings. Unlike others, I just am not a speed reader & don’t have a very quick mind nor an elephant’s endurance. That’s my problem, not other’s problem.

    When our 1st.Amend. rights are gone, what should we do then? (Hint.) We shouldn’t wait that long to do it. I believe the militias in Nevada are standing ready to do what needs to be done if the Feds. (goons for the king pin) return. Mike Kevitt

  • mkkevitt

    No, not in this case. Bundy should point out that he OWNS the land he needs for 900 head of cattle (I think it’s 900, not 1,000 as I said in my comment to the Part I posting), and that his ownership should be formally recognized, with free & clear title. It would be right for him to fight a court’s ruling contrary to that. Mike Kevitt

  • writeby

    First Bundy, now Texas:

    “What Barack Obama’s BLM is doing,” [TX AG] Abbott continued, “is so out of bounds and so offensive that we should have quick and successful legal action if they dare attempt to tread on Texas land and take it from private property owners in this state.”

    This is what NV’s AG ought to have done but didn’t.

  • writeby

    Yes, knew you knew, Ed (we met at the Staten Is. POR conference (ever hear from Mike (the options trader from England)?); but I take any opportunity I can to mention NR’s smear. Not satisfied with Chamber’s, Buckley ran one of his own. (I disagree with AR; he not intelligent enough not to believe in a god.) Even by conservative standards, NR doesn’t measure up.

  • DogmaelJones1

    I remember Wagner College (and the mess it was in when we began to show up; they’d just finished hosting a gathering of Italian Lutherans!, and also the deafening cicadas), and it was Mike O’Hara I made friends with at the time. I learned later that he married a Dutch girl and was working for Reuters; he just dropped from sight and I never heard from him again. However, I don’t recall you, my apologies. At the moment, I’m working on a column on Justice John Paul Stevens’s new book on six amendments he’d want incorporated in the Constitution.

  • mkkevitt

    writeby: Yes. Here’s my elaboration (from my comment to a news article elsewhere):

    Say there, educated people, here’s the way it is, whether you work it this way or not. The private property owners own the land, regardless, whether the land’s in OK or TX, according to how the flow of the river shifts, IF that’s according to the letter or the 1803 document, namely, that the boundary of the LA Purchase is the river, whichever way it flows. If the property owners & the gvts. of OK & TX don’t want the state line to keep shifting with the river flow, they can agree to a FIXED line, surveyed & defined. They could’ve settled this in 1907 when OK became a state. The fact that they’re not smart enough, to this day, to settle it doesn’t give the Feds. any call to force any settlement except something reliable, like a surveyed, defined line, dividing the two states, where only the property owners are allowed input into the process. Afterwards, we know what state each sq. in. of land is in and the property owners know what state their land is in. That’s FUNDAMENTALLY different, and fundamentally better, than the Feds. reverting any land back to territorial status plus taking over title, OWNERSHIP, of that land, which is what this article seems to be talking about.

    The whole issue is really quite simple, educated people (that should be in quotation marks). All the complexities are just conjured up & thrown in to confuse people, who are of inadequate thinking, out of their rights, not just in TX & OK, but everywhere.

    In Nevada, it works the same way, except there there’s no question of which state anybody’s property is in.

    Mike Kevitt

  • Philip Meyer

    Mike, thanks for your response. I’m still not sure this doesn’t throw the whole concept of contract enforcement for a loop. The court may have ruled incorrectly, I can think of countless rulings I thought were bad, but at the end of the day, aren’t they supposed to be the arbiters (in absence of legislative action to correct a problem)? I can think of all sorts of market mechanisms that would fall apart if there is no mechanism that can settle disputes.

  • mkkevitt

    Bundy had no legitimate contract with the BLM, or with Nevada. Originally, the land was an ownerless resource. Bundy owns the land he needs for 900 head of cattle, by right of original use & inheritance. THAT’s the law, which everybody ignores. Bundy has no contract concerning his use of the land. There’s no applicable court ruling. Bundy should be asserting his ownership of the land (and ignore the recent allegations of his racism as irrelevant). He should establish where his land is and what its boundaries are. He should’ve done that in 1992 or earlier. Contract law is in no danger here, nor is court jurisdiction. There was no legitimate contract for a court to enforce. If the BLM was claiming one, that claim should’ve been challenged & the court should’ve ruled on that, not whether a contract was violated. Mike Kevitt

  • Philip Meyer

    Sorry, I didn’t mean to suggest Bundy had a contract with the BLM, although one of his defenders said he paid grazing fees at one point, which implies some sort of past agreement. In any case, I raised contract law more generically. If Bundy’s case sets a precedent for people defying court rulings, won’t contract enforcement become much more problematic. Doesn’t enforcement assume the judicial branch of government is final arbiter of disputes.

  • mkkevitt

    There was an under-the-table agreement by which Bundy paid grazing fees. He quit paying when the BLM reneged.

    I knew you were raising contract law more generically. But contract law & court rulings, narrowly or generically, aren’t at risk here.

    I hang my hat on this: There was no dispute between Bundy & the BLM in the civil sense. There was a criminal encroachment by the BLM, and whatever legislation was backing the BLM, upon Bundy. The BLM also had the great physical power meant for actual law & gvt. behind it. So Bundy went along with the ‘agreement’ until the BLM reneged.

    As far as I know, civil cases can’t be appealed beyond whatever court hears them. But criminal cases often (but not always) can. If Bundy’s case was treated as a civil case, he should’ve just declared there was no civil case and refuse to appear in court, and serve notice that he would ignore any judgment against him. He should have then filed a criminal complaint against the BLM, contending a general violation of rights, naming specific rights, and naming specific actions of the BLM. He should have pushed for criminal prosecution of the BLM.

    Bundy should have, and still must, demand his property rights and his land rights as a land owner. He’s not just a squatter on federal or state land. Mike Kevitt

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