Two interlocking issues drove what appears to be slightly more than a dozen armed men to seize control of a U.S. Fish and Wildlife Service building in Oregon on Saturday evening. The first was the incarceration, release and eventual reincarceration of two men convicted of arson by a federal court. The second is a much broader dispute over whether ranchers are free to encroach upon federal lands without interference by the federal government itself.
Yet, while a federal judge’s illegal sentence — and the appeals court’s order commanding him to increase that sentence — may have been the triggering event that sparked this small-bore insurgency in Oregon, it was also just a spark cast into an existing pile of explosives. The reality is that the right-wing insurgents behind this incident are driven by an ideological battle that stretches back many years, and that was most recently fought by anti-government rancher Cliven Bundy and his armed supporters during a famous standoff with federal officials in 2014.
Clive Bundy himself has offered support to the insurgents, and the militia members involved in this armed uprising against their own government reportedly include as many as three of Bundy’s sons.
Judge Hogan’s Illegal Sentence
The triggering event that led to this insurgency involves a father-and-son. Dwight and Steven Hammond are ranchers from eastern Oregon who illegally burned federal land in 2001 and again in 2006. Indeed, according to testimony from a teenage relative of theirs at trial, Steven instructed the relative to “drop lit matches on the ground so as to ‘light up the whole country on fire‘” in 2001. Prosecutors claim that this fire, which consumed 139 acres of federal land and forced the teenager to seek shelter in a creek to avoid being burned himself, was set to cover up evidence of illegal poaching on federal property.
Nevertheless, the Hammonds became a cause célèbre among many right-wing militia types in part due to the circumstances of their sentencing. Although the Hammonds were convicted of crimes that carry a 5 year minimum sentence, Judge Michael Hogan — a judge the New York Times describes as a “politically conservative, devoutly Christian jurist” — sentenced them both to much shorter terms, claiming that the minimum sentence could not constitutionally be applied to these two men. Hogan was reversed by a federal appeals court, and the Hammonds were set to go back to prison as ranchers and militiamen protested their resentencing.
Enter The Bundys
The insurgents occupying the federal building in Oregon appear to be led by Ammond Bundy, one of Clive’s sons. In a video released on Facebook, Ammond said that he hopes that the wildlife refuge that he now occupies will “become a base place for patriots from all over the country to come and be housed here and lived here.” He told these so-called “patriots” specifically that “we need you to bring your arms,” and announced a multi-year mission to “free these lands up” and protect ranchers, miners and loggers from “this tyranny that is going to come up on them.”
One day before his son joined the armed invasion of the federal wildlife preserve, Clive Bundy published a press release supporting the Hammonds which explains why he believes their sentences are illegal.
The United States Justice Department has NO jurisdiction or authority within the State of Oregon, County of Harney over this type of ranch management. These lands are not under U.S. treaties or commerce, they are not article 4 territories, and Congress does not have unlimited power. These lands have been admitted into statehood and are part of the great State of Oregon and the citizens of Harney County enjoy the fullness of the protections of the U.S. Constitution. The U.S. Constitution limits United States government.
As a constitutional matter, this is gobbledygook. The Constitution provides that “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.” Moreover, the Supreme Court unanimously held in Kleppe v. New Mexico, that this constitutional provision provides that “the power over the public land thus entrusted to Congress is without limitations.” The federal government may own land, it may enact regulations governing that land, and it may do with its own land as it chooses, regardless of whether that land is within the borders of a state.
Indeed, even the Heritage Foundation, the bastion of conservative purity led by former Sen. Jim DeMint (R-SC), rejects Bundy’s apparent belief that the federal government cannot criminalize arson on its own land. The Heritage Guide to the Constitution offers up a somewhat narrower view of federal power than Kleppe, suggesting that the federal government’s power to regulate some of its lands may be limited to the power to “protect the proprietary interests of the United States” in that land. In any event, even if one accepts the Heritage view of the Constitution as gospel, a law preventing individuals from literally setting the government’s property on fire clearly protects “the proprietary interests of the United States.”
So Bundy’s ideas about federal land use find no support in the Constitution, in Supreme Court precedent, or even in the views of one of America’s most prominent conservative institutions. They have, however, gained traction among the sort of groups that make Heritage look like a model of restraint and moderation. The Tenth Amendment Center — a leading proponent of “nullification,” the unconstitutional idea that states can invalidate federal laws — touts an obscure 2005 law review article arguing that the federal government is obligated to “sell off” most land that is contained within the borders of a state and “distribute the subsequent monies in ways that benefited the public good such as paying off the debt or tax cuts.” Similarly, the Nevada arm of Americans for Prosperity, one of the flagship groups funded by the billionaire Koch brothers, originally backed Clive Bundy during his 2014 standoff with the federal government, although it eventually scrubbed social media posts supporting the anti-government rancher.
Bundy’s views have also been embraced by one of the most influential stars in the conservative constellation — Fox News. Appearing on Sean Hannity’s show to discuss Clive Bundy’s confrontation with the feds, Fox senior judicial analyst Andrew Napolitano claimed that “the Constitution simply does not authorize the federal government to own any” of the land it owns within several states including Nevada.
And, lest Fox’s viewers conclude that this was merely the idiosyncratic view of Napolitano, Hannity immediately responded that “I totally agree with you.”
As of this writing, neither Donald Trump or Ted Cruz, the two frontrunners for the Republican Party’s presidential nomination, have offered a view on the Oregon insurgents. During the Bundy Ranch standoff, however, Trump praised Bundy’s “spirit” and “spunk,” though he did ultimately suggest that the anti-government rancher needs to follow the law.
Cruz, meanwhile, somehow managed to blame the standoff on President Obama, claiming that it is the “unfortunate and tragic culmination of the path that President Obama has set the federal government on.”
Cruz appears to be taking a more measured approach to this incident than he took to Cliven Bundy in 2014:
Re: Oregon, Cruz says no one should use or threaten force to protest gov't. Wants situation resolved "peaceably" pic.twitter.com/MGXeLsdGmO— Jason Noble (@jasonnobleDMR) January 4, 2016