Overturn Of "Federalism" Order
Doesn’t Dissuade Clinton Camp

By William Perry Pendley

(Editor’s note: William Perry Pendley is president and chief legal officer for Mountain States Legal Foundation, a public interest law firm specializing in issues of private property and individual liberty.)

Outrage over President Clinton's Executive Order on "federalism" culminated in a lopsided vote by the U.S. House of Representatives that the Order be withdrawn. Within days it was. Notwithstanding Clinton's withdrawal of the Order, with its exhaustive listing of circumstances when the federal government must exercise dominion over sovereign states, Clinton's attack on federalism, on dual sovereignty, and on the role and rights of states continues unabated.

Consider, for example, a case in federal court in Minnesota, involving the rights of Minnesota over Rainy Lake, which lies between it and Canada. In most circumstances, Minnesota would have jurisdiction over Rainy Lake, but because Rainy Lake lies within the Voyagers National Park it is coveted by the National Park Service, which says it, not Minnesota, has jurisdiction.

That's why, in August 1996, the NPS cited Cari Brown for carrying paying passengers on Rainy Lake and why, last spring, Mr. Brown was convicted of "conducting commercial enterprises on waters of the Voyagers National Park." Brown's appeal challenges the NPS claim of jurisdiction.

The Voyagers park was created by Minnesota's donation of over 35,000 acres of state and other publicly owned lands to the United States. But Minnesota declined to donate its water rights, retaining ownership and jurisdiction. And although Congress, in the past, had acquired water rights when creating park lands, it did not do so regarding the VNP.

Under the "equal footing doctrine," all states enter the Union on an "equal footing" with the Thirteen Colonies, that is with the same rights as did those that entered in 1789. One of those rights, says the U.S. Supreme Court, is "the absolute right to all navigable waters and the soil under them for their own common use."

The "equal footing doctrine" is fundamental, but Clinton's lawyers reject it, just as they reject two Supreme Court decisions limiting federal control over state lands and waters. In one, the Court held the NPS could not regulate automobile traffic on state and county highways within a Colorado national park. In the other, the Court rejected a federal attempt to use the presence of federal lands as a basis for regulating state waters.

Dual sovereignty and the "equal footing doctrine" are not the only parts of the Constitution that Clinton's lawyers dispute in the Brown case. They say the Tenth Amendment is irrelevant. They also argue that the Property Clause (regarding federal property) gives the NPS power over Minnesota's waters. Supreme Court opinions to the contrary are ignored.

One might think that since the Clinton administration favors international governance, its lawyers would defend treaties. Not so in the Brown case, where Clinton's lawyers say two treaties guaranteeing "free navigation" do not apply to Rainy Lake.

Perhaps the most outrageous response of Clinton's lawyers is their willingness to ignore the clear intent of Congress. First, Congress failed to give the NPS authority over the waters within the VNP; it could have but did not. Second, Congress expressly protected Minnesota's "civil and criminal jurisdiction" within the VNP. Third, Congress made any asserted NPS jurisdiction subject to the treaty requirements of "free and open" to commerce.

Unfortunately, sometimes federal lawyers have help. In an earlier case involving the VNP, a federal court of appeals held that the NPS had jurisdiction over Rainy Lake, despite Minnesota’s failure to cede its jurisdiction. The court concluded that Minnesota's consent to and active participation in the creation of the VNP was tantamount to a cession of jurisdiction over its waters. Minnesota has since made it clear that it did not cede its jurisdiction over state waters.

Obviously, the battle over federalism in defense of dual sovereignty was not won with the House vote on Clinton's Executive Order or Clinton's withdrawal of that order. Instead, the battle goes on in federal courtrooms where Clinton's lawyers argue that the words of the Constitution are as indistinct and imprecise as those Clinton uses during sworn testimony.

(Apologists for Bill Clinton and his comrades continue to insist that the latest in that administration’s long laundry list of scandals is about sex. It is not and never has been; it’s about a shell-game gang of con artists that thumbs its collective nose at the rule of law and holds itself above any "controlling legal authority." This is just one more example. — Ed.)