Judging Freedom - State's Rights

Episode Date: March 14, 2022

When it comes to oil drilling - whose rights prevail - the state's or the federal government's?See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hello there everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, March 14, 2022. It's about 1.40 in the afternoon here on the East Coast. And I thought I would take a question. It's actually a series of questions from a very faithful viewer with a very inquisitive mind. He asks great questions. Dr. Steve Muriel. Dr. Steve, thank you for these questions. Last week, I was being critical of Jen Psaki, whom I know and with whom I've worked. Jen is the press secretary to President Joe Biden, and she seemed to have confused either intentionally or inadvertently the concept of leasing land with drilling on land. So the story from last week about which

Dr. Steve has asked his questions, I'll get to the questions in a minute, related that Ms. Sposaki was saying, well, we've given out a lot of leases to these oil companies. Well, the lease doesn't give you the ability to drill. A, you need the lease. B, you need permission to drill. C, you need to find the oil under the earth. So just because the government has given out leases to oil companies doesn't mean that those companies are going to be able to get the oil under the land that is leased. Okay, that's the background. Dr. Steve asks a series of great questions. How can the federal government own land when it is within the borders of a state? Where do the feds get the authority to own land? Well, Dr. Steve, it's a great series of questions.

There's no express authority in the Constitution for the federal government to own land. There is what the courts have said implied authority under the Necessary and Proper Clause. Here's the background on that. The Constitution gives 16 specific powers to the federal government, and then it's got sort of a catch-all power, saying it has the elastic clause because the courts and Congress can stretch it to any degree that they want. So as long as Congress can say arguably what the purpose of its legislation is, it can do all those things needed to support the legislation. All this came about in a famous, or if you're a libertarian, an infamous case in 1824 called McCullough against Maryland, in which the Second National Bank of the United States had its constitutionality challenged because there's no authority in the Constitution for Congress to establish a bank. The Supreme Court said to the challengers, you're right, there is no authority in the Constitution for Congress to establish a bank. The Supreme Court

said to the challengers, you're right, there is no authority. But since the government can tax, it obviously can collect money. Since it can collect money, it's got to put the money somewhere so it can own a bank. Of course, the other argument is, yeah, it can put it in a bank that's chartered by the states. Why should it have to own its own bank? But the court let the federal government own a bank and build a building and own land on which the building was located and put the cash in the building, calling it a bank. So the courts have let the feds own a lot of money, own a lot of land. Now, how do the feds get land? Well, if you're talking about states that are not the original 13 colonies, that land belonged to the federal government and they allowed the states to form on their land and they retained ownership rights to some of it. That is at least

the theory of how they got the land. In some cases, the feds have condemned the land. They've used the power of eminent domain to come on a state and say there's 40,000 acres here in the Pinelands in New Jersey. We want to build a military facility or there's a million acres in the desert in Arizona. We want to own that land. And when the government condemns land, even if it's condemning land that's owned by another government, in this case, state governments, the courts will allow it to do so as long as the fair market value for it is paid. So the government, the federal government, owns a lot of land in the United States of America. And much of the land that it owns is dirt on top of oil.

Will the feds allow oil companies to drill into that oil? Well, they've taken the position that they own the land and therefore they can decide what to do with the land. Do they legally own the land? Probably not, but because of the supremacy clause of the Constitution, I've thrown out around a lot of terms here, which says that when a state law conflicts with a federal law, the federal law will supersede, will trump, lowercase t, the state laws, the feds will prevail. So the federal claim to ownership of land almost always prevails. Now, there's a recent Supreme Court opinion going the other way, and that's where there was a challenge by a Native American tribe as to who owns land, the state of Oklahoma, the federal government,

or the Native American tribe. And the Supreme Court ruled in favor of the Native American tribe. They had a treaty with the federal government and the feds and the state of Illinois just disregarded the treaty. Supreme Court said, you can't do that. So half of what was, has been, and still is the state of Oklahoma Is owned by a Native American tribe This is a head-scratcher because a lot of people think they own land on it And both governments, the federal and state, think they own land on it So Dr. Steve, your question is a profound one It's going to continue to come back to the court.

And I don't know which way the court is going to rule. But for 150 years, the court has upheld the right of the federal government to own real estate, even if the states don't want it, even if the states don't want the feds there, and even if there's no express authority for that under the Constitution. Keep sending in your questions. Oh, and keep subscribing. And press that button that you press on the screen so that you know when I'm going to come out and do these pop-ups.

Judge Napolitano for judging freedom.