Cresent Hardy shouldn’t talk about the Constitution

Recently, Rep. Cresent Hardy earned some praise from a member of a Republican women’s club because he hadn’t changed during his freshman term in Washington, D.C.

“Voters get upset because candidates promise things and they don’t deliver and they change,” said Paula Farrell, president of the Mesquite Republican Women in a story in the Desert Valley Times newspaper. “That has not been the case with Cresent Hardy.”

It sure hasn’t!

Back when Hardy was first running for Congress, then then-Nevada assemblyman visited the Review-Journal, and told editors, among other things, that the Federalist Papers were part of the U.S. Constitution. (For the record, they are arguments contemporaneously published in favor of adopting the Constitution, but they are not, in and of themselves, a part of that document.)

Hardy also cited the Constitution/Federalist Papers for his assertion that federal officers are not allowed to enforce laws on federal lands, especially the ones that ranting racist rancher Cliven Bundy prefers to use for unpermitted cattle grazing.

Side note: Hardy did not win the R-J’s endorsement in that race.

But hey, that was a long time ago, right? People change. They grow. They learn new things. And a candidate running for a new office might just say things that aren’t quite right, just because he doesn’t know any better. Cut the guy some slack.

Oh, wait. Hold that slack.

Because in that same Desert Valley Times story in which Hardy is praised for his consistency, he criticizes Nevada U.S. Sen. Harry Reid thusly:

“This guy [Reid] wants to turn the whole state into wilderness,” he said. “Every state should have its real estate, that’s why in the Constitution you can find nowhere where it tells you the federal government can have land for anything other than forts, armories and administration.”

Um, actually, congressman, you can find such a place. In fact, it’s in Article IV, Section 3 of the Constitution, helpfully called the “Property Clause.” It says this:

“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 the claims of the United States; or of any state.” (emphasis added)

So, not only can the federal government own property, it can also make needful rules and regulations for that property, rules which ostensibly are enforced by its agents, servants and employees!

Now, it’s impossible to say whether Hardy has ever read that section of the Constitution, even though he did represent that “you can find “nowhere” in the document the authority for the federal government to own land, which implies that he’s made a diligent search and come up empty. Perhaps he missed it. (Although, not to be immodest, I did gently call it to his attention after his August 2014 visit to the R-J.)

But hey, what do I know? I’m not a lawyer (although I have played one on TV). Don’t take my word for it. Instead, take the word of a guy who actually did graduate from law school, a guy who has practiced in the area of land use and who has studied the very specific claim advanced by Hardy in that Desert Valley Times story and found it wanting.

In a recent op-ed published in the R-J, attorney Paul Larsen says this about Hardy’s assertion:

“The United States could acquire vast tracts of land, the U.S. Supreme Court has ruled, under the Property Clause of the U.S. Constitution (Article IV, Section 3). As construed by the courts, this clause gives Congress the power to acquire and hold land and property ‘without limitation’ and conveys the ability for congress to ‘retain and regulate public lands.’” (emphasis added)

And even if you don’t listen to Larsen (although you should), you can listen to the fine fact-checking folks at Politifact, which examined the exact claim Hardy made (albeit when somebody else said it) and found it was a “pants on fire” untruth!

Former Judge Anthony “Napolitano said the federal government has no constitutional authority to own land in many Western states. The underlying legal argument rests on a tenuous interpretation of constitutional language and the rejection of about 125 years of Supreme Court decisions. The legal scholars we reached, regardless of any political leanings they might have, agreed that the Constitution clearly grants Washington the power to own land and that arguments to the contrary are baseless.” (emphasis added)

And even if you don’t listen to Larsen, and you don’t listen to the fact-checkers, then maybe you’ll believe a panel of actual federal judges, specifically the ones on the Ninth U.S. Circuit Court of Appeals. Back in 1997, judges of that court directly addressed the issue of federal ownership and control of Nevada federal lands in a case called United States v. Gardner.

In that decision, the court found clearly that the federal government can own land, without violating any other law or constitutional provision. Some highlights:

• “Thus, as the United States has held title to the unappropriated public lands in Nevada since Mexico ceded the land to the United States in [the Treaty of Guadalupe Hidalgo in] 1848, the land is the property of the United States. The United States Constitution provides in the Property Clause that Congress has the power ‘to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.’ (U.S. Const. art. IV, § 3, cl. 2.) The Supreme Court has consistently recognized the expansiveness of this power, stating that ‘[t]he power over the public land thus entrusted to Congress is without limitations.’

• “The United States, then, was not required to hold the public lands in Nevada in trust for the establishment of future states. Rather, under the Property Clause, the United States can administer its federal lands any way it chooses, including the establishment of a national forest reserve.”

• Rejecting the idea that the constitutional Equal Footing Doctrine prohibits the federal government from owning or controlling land in Nevada, the court wrote:

“Moreover, Supreme Court has long held that the Equal Footing Doctrine refers to ‘those attributes essential to [a state’s] equality in dignity and power with other States.’ The Court has noted that a new state enters the Union ‘in full equality with all the others,’ and that this equality may forbid a compact between a new state and the United States ‘limiting or qualifying political rights and obligations.’ However, ‘a mere agreement in reference to property involves no question of equality of status.’ The Court has observed that ‘[s]ome States when they entered the Union had within their boundaries tracts of land belonging to the Federal Government; others were sovereigns of their soil.’ While these disparities may cause economic differences between the states, the purpose of the Equal Footing Doctrine is not to eradicate all diversity among states but rather to establish equality among the states with regards to political standing and sovereignty. [emphasis added, internal citations deleted]

“The Equal Footing Doctrine, then, applies to political rights and sovereignty, not to economic or physical characteristics of the states. Moreover, the Equal Footing Doctrine applies primarily to the shores of and lands beneath navigable waters, not to fast dry lands. Therefore, the Equal Footing Doctrine would not operate, as Gardners argue, to give Nevada title to the public lands within its boundaries.” (emphasis added)

• “As aforementioned, Congress’ power under the Property Clause to administer its own property is virtually unlimited. See, e.g., Kleppe, 426 U.S. at 539, 96 S.Ct. at 2291-92. Indeed, the United States retains title to the public lands within states such as Nevada not due to ‘any agreement or compact with the proposed new State,’ but rather ‘solely because the power of Congress extend[s] to the subject.’ Coyle, 221 U.S. at 574, 31 S.Ct. at 693. The [Nevada Constitution’s] disclaimer clause, then, is declaratory of the right already held by the United States under the Constitution to administer its property, and as such is valid under the United States Constitution. Van Brocklin, 117 U.S. at 167, 6 S.Ct. at 679.”

• “Absent consent or cession a state undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. [citations omitted] And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.”

So, there you have it. Not only does the Constitution specifically allow the federal government to own and control property, but a long line of cases up to and including Garder have affirmed that fact. That means Hardy is simply wrong about what the Constitution says, and his constituents should take his constitutional musings with a big old chunk of salt.

But yes, points for consistency, by all means.

UPDATE: And lest anyone think this is merely a slip of the tongue, a one-off mistake that could bedevil anybody on the campaign trail who says literally thousands of words every cycle, recall that this is not the first time Hardy has questioned the federal government’s ability to own land, or at the very least, to enforce laws on land that it claims it owns. Back in 2014, Hardy claimed (incorrectly) that the federal government could not enforce the law on (federal) public lands, because the Constitution and the Federalist Papers.