Monday, 6 February 2012

Federalism 101 – Why the Tenth Amendment is not like a Magic Wand

Actually, I prefer the term "Vermontaineer." Vermont is the Green Mountain State, and is occupied by formerly majestic mountains that have since been worn down to adorable nubbins. Despite the cute state of these eroded monoliths, the topography of Vermont has lead to an easy and dismissive label for those unaccustomed to mountain life: "flatlander." I am pleased to be hailing from this beautiful state, I am certainly not a flatlander, and I hope to have much to offer our readers seeking for legal explanation for the crazy cult of Utah politics.

As the learned CR Bernard noted this week, Representative Ken Sumsion (R – American Fork) has introduced a bill funding an action to end federal jurisdiction over federal public lands in the great state of Utah. For our readers’ knowledge, I did perform a quick check—Utah appears to still in fact be a member of the Union. Mr. Sumsion’s misguided attempt to shrug off the mantle of federalism is in keeping with such Tenth Amendment oddities as the Utah State-Made Firearms Act, and H.B. 143, introduced in 2010 to amend Utah’s statutory eminent domain authority to include Federal lands.

Sumsion’s bill, H.B. 91, devotes $350,000 of taxpayer dollars to “an action for declaratory judgment to enforce Section 9 of the Utah Enabling Act,” and commands the state AG to commence the action, “with haste” implied. The quoted language above is a tightly folded bundle of obscure meaning (aka, a “term of art”) that requires a bit of legal learning to unpack. It also demonstrates that attorneys (particularly legislative counsel) enjoy job security almost as much as they enjoy raising novel legal arguments with a tenuous-at-best foundation in the law.

Let’s start with the Utah Enabling Act. In 1893, the bill was introduced to Congress as an act “to enable the people of Utah to form a constitution and State-government and to be admitted to the Union on an equal footing with the original States.” Once again, this is an example of a term of art hard at play: the term "equal footing" carries a hefty definition.

From what I can tell of where Mr. Sumsion is going with the novelty he intends to present to the courts, there will be three federal constitutional provisions at play. To begin with, the phrase “admitted to the Union on an equal footing with the original States” above is a manifestation of the Equal Footing Doctrine.

This Doctrine stems from two provisions in the federal Constitution. First, under Article IV, Section 3, Congress may admit new states to the Union. Since Congress granted Tennessee statehood in 1796, every state enabling act has included a clause similar to the one you see in the Utah Enabling Act above.

As an aside, this equal footing concept was originally included in the proposed text for the Constitution. But on August 29, 1787, a Mr. John Langdon of New Hampshire suggested that “circumstances might arise which would render it inconvenient to admit new States on terms of equality.” The “Details” Committee dropped the language for the final version of the Constitution.

The second provision is the ubiquitous Supremacy Clause, dictating that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” U.S. Const. art. VI. This phrase has been handed down so many times between generations of our life-tenured and venerable SCOTUS that it resembles a well-worn paddling stick; something the federal government can waggle in the face of an uppity state like Utah to assert federal supremacy over certain state powers.

You see, the thing is, the federal government is in fact a central government of limited powers. The power given the national government under the Constitution is the extent of what the Feds can do. The Tenth Amendment, adopted two years after Congress debated whether to include the equal footing language in the Constitution, dictates that the balance of “powers not delegated to the United States” under the Constitution are given to “the States . . . or to the people.” This is the third provision wrapped in this meaty proposal from Rep. Sumsions, and historically the yodel of the sagebrush rebel along with “state’s rights[!]”

As applied to statehood, and the particular argument I think Mr. Sumsion is getting at, these provisions make for two sides of an awkwardly-shaped coin. Side A, half Equal Footing Doctrine/half Tenth Amendment, says that a shiny new state, when admitted to the Union, retains ownership over certain lands. This includes: lands underneath the public waterways, in a tradition known as the Public Trust Doctrine dating back to Roman times; lands already in private or ownership; and lands given to the state through its Enabling Act.

As an owner of public lands, and as a state government, a state admitted to the Union can legislate and govern as it sees fit, with a few looming exceptions. The Constitution is said in the legal field to create a “floor,” above which the states may experiment and govern as they see fit. The states are the quintessential “laboratory of ideas.” Justice Brandeis, in his dissent in New State Ice Co. v. Liebmann, voiced concern for limiting state ability to experiment “in things social and economic. . . . It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.” Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

Side B of our lumpy analogy says that the federal government owns everything else that Congress claims for the nation, and reserves the right to regulate whatever it owns to protect the public interest. This means in part that the Feds can tell you what to do, when to do it, and how you may do it without suffering legal consequences when it comes to Federal lands.

This all brings us back to where we began, with the Utah Enabling Act, in particular Section 9. This section of the Act establishes what is called a School Lands Trust, giving to the state 5% of the proceeds from the sale of public lands within the state, but requiring that the proceeds be deposited into a trust account specifically “for the support of the common schools within [the] State.” Utah Enabling Act of 1894, Pub. L. No. 53-138, 28 Stat. 107 (1894). A similar provision appeared in the constitutions of most of the states admitted in the nineteenth century.

If I am not mistaken, Mr. Sumsions’s case will come down to a question of textual interpretation. The phrasing of Section 9 of the Utah Enabling Act states that “five per centum of the proceeds of the sales of public lands lying within said State, which shall be sold by the United States subsequent to the admission of said State into the Union, . . . shall be paid to the said State.” If what Mr. Sumsions has hinted at is true, he intends to essentially hold the Federal government liable for breach of contract for failing to sell the state’s public lands. The alternative, that he would sue for breach of contract for failing to pay the state the proceeds of what it did sell, seems an unlikely argument, and the weakest of two brittle legs of this theory.

If Mr. Sumsions is in fact going to claim that the federal government agreed to sell its public lands, and failed to do so, my expectation is that he will fall flat on his face in court, figuratively speaking, for three reasons. First, the courts, in particular Utah’s sister federal Court of Appeals in the Ninth Circuit, are familiar with Mr. Sumsion’s style of song and dance.

For example, in U.S. v. Gardner, 107 F.3d 1314, 1317 (9th Circ. 1997), the Ninth Circuit rejected Nevada’s claim that the United States breached its duty to the state by failing to cede all public lands within its borders to the state government when Nevada was admitted to the Union. The state insisted that, before any states were formed from federal territory, the federal government only held its territorial lands in trust. Thus, the federal government’s failure to give the newly-formed state all of the land within its borders meant it had breached its own contract and thus lost its ownership rights.

The Ninth Circuit dismissed this argument by referencing another robust aspect of the federalism issue. Article IV, Section 3, clause 2, of the U.S. Constitution is known as the Property Clause. This clause dictates that Congress has the ultimate power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” In essence, if the Feds want it, they get it, and they can do what they please with the lands it elects to keep.

Second, the phrasing of the language in Section 9 of the Utah Enabling Act can be read two ways. You could make the baffling argument that Congress agreed to sell all public lands it owned in Utah because of the language “shall be sold by the United States.” The more plausible, and vastly more logical, reading is to put the phrase in its context. The fact that the phrase “which shall be sold . . .” is preceded and followed by a comma means it is more likely Congress intended the phrase as a modifier. In other words, not “the United States shall sell the public lands and give the State 5% of the proceeds,” but “the states will get 5% of the proceeds from the sale of public lands, if the federal government chooses to sell them.”

Third, and finally, though Mr. Sumsions may be counting on the current makeup of the SCOTUS to guarantee him a slam-dunk win with what amounts to a swiss cheese, and equally smelly, argument, Mr. Sumsions is also forgetting that the current SCOTUS is as fond of the Supremacy Clause as it is of the Tenth Amendment. This may be the most conservative court in recent memory, but the Court is required to uphold the tenets of the federal Constitution. If the Constitution reserves to the federal government the right to dictate the supreme law of the land, and to dictate what happens with its property, a state trying to effectively reclaim the 60% of the state’s land area belonging to the federal government, has a laughably good challenge ahead.

Oh to be a fly for a day, to perch on the wall of the Attorney General when this bill lands on his desk and he has to decide whether to go ahead with the declaratory judgment action, or have a serious sit down with Rep. Sumsions.


  1. Oh heavens... this is the great state of Utah filled with some very foolish folks that love to go after anything that may bring them a bit of screen time in the public eye- my bet is they will proceed with the action. Anyone care to make a friendly wager?

  2. Sarahbethb - I would only "care" to make a friendly wager on that if I felt like losing ;-)

    Welcome, Mighty Law Nerd, and thank you so much for your contributions, erudition, and general sex-it-up-itness!