Center for Tenth Amendment Studies
School children across Utah were likely exposed this week to the virtues of environmental conservation and the heroics of “Captain Planet” in honor of Earth Day. We presume that few were introduced to the unintended consequences of federal environmental regulation. Forty three years ago, the Clean Water Act was enacted—the original intent of which was to authorize the EPA to ensure waters of the United States were not being polluted. This law has been used in modern times to prevent private property owners from developing their own property without first obtaining expensive permits from the federal government.
Later this month the EPA may be finalizing a proposed rule to define the “waters of the United States” over which it has regulatory jurisdiction under the Clean Water Act. The EPA has been unsatisfied with the way in which ambiguity about the definition has led to recent court decisions that seem to confine EPA authority to interstate or “navigable” waters and only those additional waters that have a “significant nexus” to navigable waters. Conversely, the regulatory trend of EPA enforcement has led to the expansion of their jurisdiction to intrastate waters including adjacent wetlands, intermittent tributaries that may only flow during wet seasons, and even remote bodies of water at times. Historically, the EPA’s attempt at enforcement over such waterways has led to Supreme Court litigation resulting in precedent that has narrowed this scope. Dissatisfied with this result, the EPA now seeks to permanently define their regulatory overreach in a more expansive way while also precluding future legal battles over jurisdiction.
The way “waters of the United States” is defined in statute will have significant and far-reaching effects for private property owners, agriculture, and industries throughout the country. By expanding the scope of this term, the EPA will gain jurisdiction over millions of acres and countless private activities. Representative Harold Rogers (R-Ky), Chairman of the House Appropriations Committee, called the proposed rule “the biggest land grab in the history of the world,” expressing concerns that it would have a profoundly negative economic impact. Farmers across the country are so concerned about the impact of the rule that the Farm Bureau launched a public awareness campaign to “ditch the rule”—referencing their assessment that application of this expanded definition could extend regulatory control even to irrigation ditches on farm property.
Between the Cliven Bundy standoff and the Recapture Canyon protest, federal ownership of vast swaths of land within western states has come to the fore of public attention. Utah has been leading efforts to transfer federal land into state control, passing H.B. 148—demanding the transfer of federal lands to state control—in 2012 and hosting a summit for like-minded western legislators in April of this year. Seven other western states have passed similar bills in recent years, giving the issue the feel of a credible movement. But, fervor aside, what is a federal land transfer likely to look like?
I. It’s Complicated: The Implications of a Federal Land Transfer
In some ways, a federal transfer of land is more complicated than one might expect. Though less well known than H.B. 148, H.B. 142 passed in 2013 and is in many ways the more meaningful step toward Utah getting control of land in its borders. After the initial excitement of H.B. 148, H.B. 142 authorized a study and economic analysis of what would actually be involved in a mass federal land transfer. Conducted by teams of researchers associated with the University of Utah and Utah State University, this study aims to get the nuts-and-bolts information that Utah would need to be prepared to more than double its land holdings. The results of this study are due to be presented to Utah legislators this November so while the results aren’t in yet, work to date indicates the scope of what will be involved.
The first issue is simply inventorying federal land in Utah, all 35,033,603 acres of it. The amount of land involved is so vast that just getting a grip on where it is and what each area’s unique potential uses are (development, preservation, recreation, grazing, timber, mineral extraction, oil and gas, solar, and wind) is quite an undertaking.
The next issue is identifying current interests associated with each area and developing a way to account for and manage those interests during and after a transfer. Much of this land is already subject to oil, gas, mining, grazing, and timber leases or rights which would contractually need to be honored or otherwise addressed. Other areas are already used for recreational purposes which would need to be accounted for.
Then there’s the matter of money. There are currently several revenue sharing schemes in place for money generated from public lands. Essentially, in recognition that federal ownership of lands necessarily deprives Utah of the ability to generate tax revenue from that land, the federal government has developed several programs which share portions of the proceeds from grazing and timber leases and shares them with local governments. Any transfer plan needs to account for how money will be shared and how localities will adjust after the transfer.
And that is to say nothing of trying to estimate the bill for taking over an area the size of Wisconsin. It’s not a simple matter of finding what various federal agencies currently take in and spend to manage land in Utah: because the federal government mismanages and underfunds land management, the cost of doing it right could be significantly higher than what is currently being spent. Conversely, there are certainly potential efficiencies that could be gained through effective management. The study authorized by H.B. 142 analyzes several hypothetical scenarios involving different types and degrees of transfers and attempts to predict the economic impact of each.
II. The Process of Getting Control of Federal Lands
There are essentially two tactical routes which Utah could take to get control of federal lands.
The first would be for Congress to pass a bill ceding land to Utah. Federal land transfers are actually quite common, but they generally happen on a very small scale. For example, last year the federal government transferred, gratuitously, a small amount of land in Wyoming for a shooting range. It’s simple, but requires adequate political will at the federal level which seems unlikely. Attempts at larger federal land transfers have not made much progress. For example, in 1995, Senate Bill 1031 proposed a bill to offer all BLM land to the states. It summarily died in committee. Admittedly the political climate and elected leaders are much different now than in 1995. However, devolving federal lands does not seem to be high on any federal legislator’s bucket list.
The second option would be a lawsuit that would argue that the federal government is required to transfer federal lands to the states. There are credible legal arguments supporting this proposition—primarily that the Utah Enabling Act was a compact which bound the federal government to dispose of land within state boundaries or that the equal-footing doctrine requires the federal government to afford Utah the same right to control property within its borders as earlier-admitted states. However, assuming the Supreme Court was willing to hear the case, there is no controlling legal precedent so the outcome would be anybody’s guess. And given the Roberts Court’s penchant for avoiding controversy even when mental gymnastics are required to do so, the outlook is not necessarily promising.
While returning land within Utah to local control makes sense from both a management and a self-determination standpoint, it is a complicated issue. Regardless of the method used to pursue it, it will be an uphill battle. It is nevertheless a battle worth pursuing.
Thousands of newly-minted graduates will proudly parade in front of beaming family and friends to receive their college diplomas in the coming few weeks. Parents will cheer as their children attain the degrees that parents worked and saved so long to finance. Unfortunately, much of this celebration may be unwarranted.
While the unemployment rate for college graduates is significantly lower than that for non-grads, more than a third of college grads will accept employment in a job that doesn’t require a degree. Many of these will be working in sales, food services, customer service, or construction—probably not what they had in mind when they forewent four years of full-time employment to attend college.
Even for graduates who obtain a job that requires a degree, it is getting harder to justify the amount spent to obtain one. Nationally, 70% of graduates have student debt with an average debt of $29,400 (Utah graduates average $21,520). As a percentage of median family income, tuition at a public four-year college represented only 4% of median family income in 1970, reaching 11% by 2010. Private tuition jumped from 16% to 36% of median family income during those years. Not only does this mean that it’s harder to pay for college, it means that tuition constitutes a larger portion of future earnings.
Earlier this year the Supreme Court issued a ruling in Sandifer v. United States Steel Corp. At issue was whether employees must be paid for time spent donning and doffing protective work clothing. The Court ultimately held that if a collective bargaining agreement deems dressing and undressing to be noncompensable, employers can rely on this agreement and need not compensate employees for this time.
Now, legal minutia aside, why is a federal court deciding this at all? The short answer is the Commerce Clause. The Fair Labor Standards Act (FLSA) which governs employee pay and is the basis for Sandifer, was upheld, like so many bills, as a valid exercise of the commerce power.
Article I, Section 8 of the Constitution grants Congress authority to regulate commerce among the several States. When discussing this topic in the Constitutional Convention, it is evident that the founders were concerned about states erecting trade barriers against each other such as import and export taxes. The ratification debates indicate that the American population also shared a narrow conception of the word “commerce.” Prior to the New Deal, the Supreme Court itself limited the application of the Commerce Clause by distinguishing between “production,” which did not fall under the Commerce Clause, and “commerce,” which did. (See United States v. E.C. Knight Co.)
What Nullification Should Not Be
Nullification means many things to many people. Perhaps the most extreme version is when a state passes a law purporting to override a federal law. Last year, for example, Missouri nearly passed a bill that explicitly claimed to make the Federal Gun Control Act of no effect within Missouri and making it a misdemeanor for federal agents to enforce federal gun laws. The bill justified its nullification on the grounds that “The people of the several states have given Congress the power ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,’ but ‘regulating commerce’ does not include the power to limit citizens’ right to keep and bear arms . . .”
The federal government regularly oversteps the powers delegated to it by the Constitution, and states are justifiably frustrated and outraged. However, the version of nullification resorted to by Missouri puts states in the position of delineating the boundaries of the Constitution. This is problematic for several reasons: first, it could potentially lead to fifty different interpretations of the Constitution; second, there is no guarantee that states will do a better job of interpreting the Constitution than federal courts. While most proponents of nullification see it as a way to counteract federal overreach, there is no reason that it could not also be used by states to circumvent federal Constitutional protections. Finally, it undermines the legitimate purposes for which the federal government was created. For a federal government to be of any use, it needs to be supreme in certain areas. (Of course, its supremacy is far more limited than many today claim it to be.)
A recent Supreme Court case, McCullen v. Coakley, highlights the second of these problems. McCullen involves a Massachusetts law creating a 35-foot buffer zone around abortion clinics which protesters may not enter. At issue is whether or not this violates the rights of protesters to free speech as guaranteed by the First Amendment.
Earlier this month the Departments of Education and Justice released an information package regarding school discipline. Its main thrust is that not one, but two federal departments are going to micromanage school discipline in a district near you.
Concerned that discipline for misbehavior may be unfairly meted out based on race, disability, religion, or sex, the Departments have decided to conduct investigations “as part of their regular compliance monitoring activities”—not just when there is a complaint of discrimination.
One would hope that schools could avoid punishment for discrimination by not discriminating in policy or practice, but that would be a false hope. The Departments made clear that disparate impact alone is enough to invoke their ire. In their own words (see page 11 in the previous link), “Schools also violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race.”
A newly released audit for the state of Utah reveals that the government relies upon federal funds for well over a third of its budget. According to state auditor John Dougall, “Utah continues to have a heavy dependence on federal financial assistance, which amounted to $4.5 billion in federal expenditures and $2.2 billion in endowments, loans and loan guarantees for the fiscal year ended June 30, 2013.”
As reported earlier this year, a 2011 financial report produced by the federal government states that “there is little question that current fiscal policies cannot be sustained indefinitely.” The Comptroller General similarly said in the report that “the current structure of the federal budget is unsustainable over the longer term.”
Those dismissive of the possibility of nullification being an effective tool in fighting back against an overreaching federal government should take note of a recent move by the U.S. Justice Department. Last week Attorney General Eric Holder told the governors of Colorado and Washington that the Justice Department would allow their laws to go into effect that legalized the use of marijuana by adults.
The Justice Department issued a memo to U.S. Attorneys which basically says that the federal government would not interfere so long as states “establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance.” Those eight federal interests are the following:
The inaugural meeting of Utah’s Commission on Federalism was held last Tuesday, July 2nd, at the Capitol. The meeting offered a skeptic like me some hope of some real progress by the members of the commission, and in turn the legislature, in the balance of power between the ever-expanding federal government and the states.
The reason I was skeptical is because I had previously attended a meeting of the Federalism Subcommittee, which was dissolved and replaced by the new Commission on Federalism, and I was not impressed by the progress or the potential of the subcommittee.
The newly created commission has one major advantage over its predecessor: it is chaired by the Senate President and the Speaker of the House. That alone gives the commission more clout and influence with the legislature as a whole. In addition to the chairpersons, the committee includes two senators, three representatives, and five legislative staffers (general counsel, policy analysts, and a legislative secretary).
A recent editorial by the Salt Lake Tribune offers another example of a common misunderstanding of the U.S. Constitution’s “Supremacy Clause”. The editorial equates state nullification of federal law with “poking the U.S. Constitution in the eye by ignoring the Supremacy Clause, which elevates federal law above state and local laws…” This misguided opinions relies upon a popular though incorrect understanding of what the clause states. Here’s the Supremacy Clause in its entirety, as found in Article VI of the U.S. Constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Opponents of nullification tend to leave out seven key words: “which shall be made in pursuance thereof.” When this qualifying context is omitted, one would of course come to the conclusion that federal law trumps conflicting state and local laws every time. Under this interpretation, the federal government holds supreme power—without exception—and states can only exercise those powers that their federal overlords permit them to.