jurisdiction: acting like states

“Act Like It”

Ken [email protected]!

"Every system is perfectly designed to achieve the results that it gets.”��

W. Edwards Deming

U.S. Constitution Article I, Sec. 8, cl. 17

“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--”

U.S. Constitution Amendment X

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Line as Understood for nearly 150 Years

Governor Franklin Delano Roosevelt (D-NY), March 2, 1930

“Congress has been given the right to legislate on . . .

particular subject[s], but this is not the case in the

matter of a great number of other vital problems of

government, such as the conduct of public utilities, of

banks, of insurance, of business, of agriculture, of

education, of social welfare and of a dozen other

important features. In these, Washington must not be

encouraged to interfere.”

“The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions.”!

U.S. Supreme Court Affordable Care Act Decision (June, 2012)!Federal Govt Powers Limited

By Constitution!

“The same does not apply to the States, because the Constitution is not the source of their power. … state governments do not need constitutional authorization to act. ... Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the ‘police power.’” !

U.S. Supreme Court Affordable Care Act Decision (June, 2012)!States’ Powers NOT Limited

By Constitution!

“The Framers thus ensured that powers which ‘in the ordinary course of affairs, concern the lives, liberties, and properties of the people’ were held by governments more local and more accountable than a distant federal bureaucracy.” !

U.S. Supreme Court Affordable Care Act Decision (June, 2012)!

State Jurisdiction Checks Federal Power!

“The independent power of the States also serves as a check on the power of the Federal Government: ‘By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.’” !


State Jurisdiction Checks Federal Power!

JURISDICTION, n. [Fr. L. jurisdictio; jus, juris, law, and dictio, from dico, to prounouce] 1. The legal power or authority of doing justice in cases of complaint; the power of executing the laws and distributing justice. 2. Power of governing or legislating. 3. The power or right of exercising authority. 4. The limit within which power may be exercised. The American Dictionary of the English Language, Noah Webster, 1828

“In the typical case we look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own." "


States Must Act Like Independent Sovereigns!

“The States are separate and independent sovereigns.

!"Sometimes they have to act like it." "


States Must Act Like Independent Sovereigns!

SEPARATE, a. [L. separatus] Divided from the rest; being parted from another; disjoined; disconnected; distinct. The American Dictionary of the English Language, Noah Webster, 1828

INDEPENDENT, a. 1. Not dependent; not subject to the control of others; not subordinate. 2. Not holding or enjoying possessions at the will of another. 3. Affording the means of independence. 4. Not subject to bias of influence; not obsequious; self-directing. 5. Not connected with. 6. Commanding; bold; unconstrained. 7. Separate from. The American Dictionary of the English Language, Noah Webster, 1828

SOVEREIGN, n. suv’eran. A supreme lord or ruler; one who possesses the highest authority without control. SOVEREIGN, a. suv’eran. 1. Supreme in power; possessing supreme dominion. 2. Supreme; superior to all others. 3. Supremely efficacious; superior to all others; predominant. 4. Supreme; pertaining to the first magistrate of a nation. The American Dictionary of the English Language, Noah Webster, 1828

The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens. As Madison expressed it: "[T]he

local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere." The Federalist No. 39, at 245.

"

Printz v. United States 521 U.S. 898 (1997)

States Are Supreme In Their Sphere!

SUPREMACY, n. [See Supreme] The state of being supreme or in the highest station of power; highest authority or power. SUPREME, n. [L. supremus] 1. Highest in authority; holding the highest place in government or power. 2. Highest, greatest or most excellent. The American Dictionary of the English Language, Noah Webster, 1828

“This separation of the two spheres is one of the Constitution's structural protections of liberty. … a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.’” "



“To quote Madison once again:

‘In the compound republic of America,

the power surrendered by the people is first divided between two distinct governments,

… Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.’ The Federalist No. 51, at 323.” !



The Line

"It must be done by the States themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the General Government." Thomas Jefferson, Letter to Archibald Stuart, 1791.

“If there be No Such Line, the consequence is either that the colonies are vassals of Parliament, or that they are totally independent.” John Adams, Letter to Royal Governor Thomas Hutchinson, 1773

The Line “. . . this Constitution deserves approbation [praise] . . . [for] the accuracy with which the line is drawn between the powers of the general government and those of the particular state governments. . . . the powers are as minutely enumerated and defined as was possible . . .” James Wilson, Pennsylvania Ratifying Convention, 4 Dec. 1787

So . . .

“State Legislatures will

²  jealously and closely watch the operations of this Government, and

² be able to resist with more effect [better] than any other power on earth can do; and

²  the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people's liberty.”

James Madison, Introduction of the Bill of Rights, The Annals of Congress, House of Representatives, First Congress

Ambitious encroachments of the federal government, on the authority of the State governments, (i)  WOULD NOT EXCITE THE OPPOSITION OF A

SINGLE STATE, OR OF A FEW STATES ONLY. (ii)  They would be SIGNALS OF GENERAL ALARM. (iii)  Every government would ESPOUSE THE COMMON

CAUSE. (iv)  A CORRESPONDENCE WOULD BE OPENED. (v)  PLANS OF RESISTANCE WOULD BE CONCERTED. (vi)  ONE SPIRIT WOULD ANIMATE AND CONDUCT THE

WHOLE. (vii)  unless the projected innovations should be voluntarily

renounced, the same appeal to a trial of force would be made in the one case [foreign invasion] as was made in the other [federal intrusion].

(viii) ONE SET OF REPRESENTATIVES WOULD BE CONTENDING AGAINST THIRTEEN SETS OF REPRESENTATIVES

(ix)  THE WHOLE BODY OF THEIR COMMON CONSTITUENTS ON THE SIDE OF THE LATTER.

James Madison, Federalist 46

“It may safely be received as an axiom in our political

system, that the State governments will, in

all possible contingencies, afford complete security against invasions of the public liberty by the national authority. (i)  The [State] legislatures will have BETTER MEANS OF

INFORMATION. (ii) They can DISCOVER THE DANGER at a distance; and (iii)  POSSESSING ALL THE ORGANS OF CIVIL POWER, and (iv)  the confidence of the people, they can at once (v)  ADOPT A REGULAR PLAN OF OPPOSITION, in which

they can (vi)  COMBINE ALL THE RESOURCES OF THE COMMUNITY. (vii) They can READILY COMMUNICATE WITH EACH OTHER

IN THE DIFFERENT STATES, and (viii)  UNITE THEIR COMMON FORCES FOR THE

PROTECTION OF THEIR COMMON LIBERTY.” – Alexander Hamilton, Federalist 28

“THE STATE GOVERNMENT WILL HAVE THE ADVANTAGE OF THE FEDERAL GOVERNMENT, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; TO THE POWERS RESPECTIVELY VESTED IN THEM; TO THE PREDILECTION AND PROBABLE SUPPORT OF THE PEOPLE; TO THE DISPOSITION AND FACULTY OF RESISTING AND FRUSTRATING THE MEASURES OF EACH OTHER.”

James Madison, Federalist 45

Federal Tide Washes Away State Sand Castles

“It will be [our] own faults” If we fail to build an adequate Sea Wall

"… it will be their own

FAULTS, if the several states

suffer the federal sovereignty

to interfere in the things of their respective jurisdictions."

!

John Dickinson (Fabius), Letter III, 1788 (all caps in original)

JURISDICTION, n. [Fr. L. jurisdictio; jus, juris, law, and dictio, from dico, to prounouce] 1. The legal power or authority of doing justice in cases of complaint; the power of executing the laws and distributing justice. 2. Power of governing or legislating. 3. The power or right of exercising authority. 4. The limit within which power may be exercised. The American Dictionary of the English Language, Noah Webster, 1828

The Interdepartmental Committee for The Study of Jurisdiction Over Federal Areas Within The States was made up of:!Ø U.S. Attorney General!

Ø U.S. Comptroller General!Ø All of the States Attorneys General!Ø  33 federal agencies!!

The Study Committee reviewed:!more than “1,000 federal and state cases”, “innumerable textbooks and legal periodicals related to legislative jurisdiction.”!!!Jurisdiction over Federal Areas within the States, Vol. I !

“The Committee notes that there has never before been conducted a study of the subject of legislative jurisdiction approaching in comprehensiveness the survey of facts and the law.”Jurisdiction over Federal Areas within the States, Vol. I !

Four Areas of Jurisdiction/Interest:

1.  “Exclusive legislative jurisdiction” 2.  “Concurrent legislative jurisdiction” 3.  “Partial legislative jurisdiction” 4.  “Proprietorial interest only”

Exclusive Legislative Jurisdiction

“refers to the power ‘to exercise exclusive legislation’ granted to the Congress by Article I, sec. 8, cl. 17 of the Constitution, and to the like power which may be acquired by the United States through cession by a State, ... In the exercise of such power as to an area in a State the Federal Government theoretically displaces the State in which the area is contained of all its sovereignty authority, executive and judicial as well as legislative.” Jurisdiction over Federal Areas within the States, Vol. I

Concurrent Legislative Jurisdiction

“This term is applied in those instances wherein in granting to the United States authority which would otherwise amount to exclusive legislative jurisdiction over areas the State concerned has reserved to itself the right to exercise, concurrently with the United States, all of the same authority.” Jurisdiction over Federal Areas within the States, Vol. I

Partial Legislative Jurisdiction

“This term is applied in those instances wherein in the Federal Government has been granted for exercise by it over an area in a State certain of the State’s authority, but when the State concerned has reserved to itself the right to exercise, by itself or concurrently with the

United States, other authority constituting more than merely the right to serve civil or criminal process in the area (e.g. the right to tax private property).” Jurisdiction over Federal Areas within the States, Vol. I

Proprietorial Interest Only

“This term is applied to those instances wherein the Federal Government has acquired some right or title to an area in a State but has not obtained any measure of the State's authority over the area.” Jurisdiction over Federal Areas within the States, Vol. I

Proprietorial Interest Only

“…in the case where the United States acquires only a proprietorial interest the State retains all the jurisdiction over the area which it would have if a private individual rather than the United States owned the land." Jurisdiction over Federal Areas within the States, Vol. I, Page 21-22

"It should be noted that … the so-called public domain, were not affected by the statutes, and legislative jurisdiction with respect to them remained in the several States. Curiously, therefore, the vast areas of land which constitute the Federal public domain generally are held by the United States in a proprietorial statute only." !!Jurisdiction over Federal Areas within the States, Vol. I, Page 9!

"As to the powers reserved by the State for exercise only by itself, administration of the area is as though the United States had no jurisdiction whatever !(i. e., proprietorial interest only ); the reserved powers may not be exercised by the federal government, but continue to be exercised by the State." !!!Jurisdiction over Federal Areas within the States, Vol. I, Page 21!

Why the Difference??

Equal Sovereignty is Fundamental!!“Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States.” … “Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’” !!Shelby County v. Holder, 570 U.S. ___ (2013)!!

Separate But Equal?!!

“…‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’ …the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.”! Shelby County v. Holder, 570 U.S. ___ (2013)!!

Why the Difference??

www.AmericanLandsCouncil.org!

www.AmericanLandsCouncil.org!!

Ken Ivory!801.694.8380!

[email protected]!

!

American Lands Council

@AmericanLandsCn

Extra Slides

"Effects of varying statutes.--To each of the four categories of legislative jurisdictional situations (in which the United States has (a) exclusive, (b) concurrent, (c) or partial legislative jurisdiction, or (d) a proprietorial interest only) differing legal characteristics attach.”!!!!!!!Jurisdiction over Federal Areas within the States, Vol. I, Page 14!

"... agencies which consider that only a proprietorial interest in the !Federal Government, with legislative jurisdiction left in the States, best suits the requirement of their operations." !!!!!!!Jurisdiction over Federal Areas within the States, Vol. I, Page 33 !

"The power to make and enforce the necessary rules and regulations for the management of Federal property does not depend, constitutionally, on the acquisition by the Federal Government of legislative jurisdiction. … the regulatory authority which it proposes be granted to all Federal land management agencies should not be made to depend on the acquisition of Federal jurisdiction over the lands concerned. Because of the confusion and other adverse effects which multiplication of Federal police forces well might have on law enforcement,”!!Jurisdiction over Federal Areas within the States, Vol. I, !

!"Department of the Interior.—!!This Department proprietorial interest only as most desirable for the great bulk of the vast areas of Federal lands under its supervision." !!!!!!!!Jurisdiction over Federal Areas within the States, Vol. I, Page 63!

"Agencies preferring a proprietorial interest only.--The last and largest group, which desires for its properties only a proprietorial interest in the United States, with legislative jurisdiction left in the States, includes all Federal agencies not mentioned in the two paragraphs above which occupy or supervise real property of the United States" !!!!!Jurisdiction over Federal Areas within the States, Vol. I, Page 34!

Exclusive Legislative Jurisdiction

“refers to the power ‘to exercise exclusive legislation’ granted to the Congress by article I, sec. 8, cl. 17 of the Constitution, and to the like power which may be acquired by the United States through cession by a State, or by a reservation made by the United States in connection with the admission of a State into the Union. In the exercise of such power as to an area in a State the Federal Government theoretically displaces the State in which the area is contained of all its sovereignty authority, executive and judicial as well as legislative.”

"Proprietorial interest only.--Where the Federal Government has no legislative jurisdiction over its land, it holds such land in a proprietorial interest only and has the same rights in the land as does any other landowner. ... in the case where the United States acquires only a proprietorial interest the State retains all the jurisdiction over the area which it would have if a private individual rather than the United States owned the land." !!!

Jurisdiction over Federal Areas within the States, Vol. I, Page 21-22!

Committee Conclusions:!!"With respect to the large bulk of federally owned or operated real property in the several States and outside of the District of Columbia it is desirable that the Federal Government not receive, or retain, any measure whatever of legislative jurisdiction, but that it hold the installations and areas in a proprietorial interest status only, with legislature jurisdictions several States;" !!!Jurisdiction over Federal Areas within the States, Vol. I, Page 70!

"It should be noted that lands already under the proprietorship of the United States when these general consent statutes were enacted, such as the lands of the so-called public domain, were not affected by the statutes, and legislative jurisdiction with respect to them remained in the several States. Curiously, therefore, the vast areas of land which constitute the Federal public domain generally are held by the United States in a proprietorial statute only." !!!Jurisdiction over Federal Areas within the States, Vol. I, Page 9!

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, . . . Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

-- James Madison, Federalist 51

jurisdiction: acting like states

Education

federal power

independent power

arbitrary power

legal power

police power

states powers

federal government

united states