All Commentary
Friday, September 1, 1995

Freedom: An Endangered Species

What Jurisdiction Does the Federal Government Have Over Private Lands?

Mr. Greenslade lives in Walnut Creek, California.

The recent complaint filed against Taiwanese immigrant Taung Ming-Lin and his corporation Wang Lin, Inc., for alleged violations of the federal Endangered Species Act is another example of the federal government usurping its powers.

Ming-Lin’s company is charged, in a complaint filed by the U.S. Fish and Wildlife Service, with killing several Tipton Kangaroo rats and destroying the habitat of two other endangered species. Mr. Ming-Lin’s crime was plowing 723 acres of scrub land owned by his company in Kern County, California, 150 miles north of Los Angeles.

Does the federal government have the constitutional authority to enforce the Act on private land located within a state?

To understand the answer to the question, it is first necessary to understand the limitations of government powers. The federal government derives all legislative power from the Constitution. All powers not specifically enumerated are reserved to the states or the people. This principle was succinctly stated by the framers, in their writings, particularly in The Federalist.

In The Federalist, number 14, James Madison spoke of the limited power of the federal government: “In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects. . . .”

Madison also distinguished the limited powers of the federal government with those reserved to the states. It is important to note that the powers of the federal government related primarily to external (foreign) affairs:


The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State. (number 45)

Put quite simply, the federal government was empowered primarily to deal with foreign affairs while the States would concern themselves with domestic affairs.

Thomas Jefferson made this point in 1824:

With respect to our State and federal governments, I do not think their relations (are) correctly understood by foreigners, (or Americans, for that matter.) They generally suppose the former subordinate to the latter, but this is not the case. They are coordinate departments of one simple and integral whole. To the State governments are reserved all legislation and administration in affairs which concern their own citizens only; and to the federal government is given whatever concerns foreigners or citizens of other States, these functions alone being made federal. The one is domestic, the other the foreign branch of the same government; neither having control over the other, but within its own department.

In The Federalist, number 83, Alexander Hamilton stated that Congress was not granted general legislative powers:

The plan of the convention declares that the power of Congress, or in other words of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general legislative authority was intended.

The question as to whether the federal government should have power over land located within a state was before the Constitutional Convention of 1787. It was proposed to grant Congress exclusive legislative authority over what is now the District of Columbia, and like authority “over all places purchased for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” The first part of the provision was agreed to and a short debate ensued concerning the second: MR. GERRY contended that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government. MR. KING thought himself the provision unnecessary, the power being already involved; but would have to insert, after the word “purchased,” the words, “by the consent of the legislature of the state.” This would certainly make the power safe.

Agreement with this change was unanimous and would become Clause 17 of Article I, Section 8 of the federal Constitution.

The debates in the Constitutional Convention illuminate the framers’ fear of the federal government usurping power. There appears to be no question that the consent requirement of Clause 17 was added to prohibit the federal government from destroying the sovereignty of the states. Clause 17 is one of the checks and balances incorporated in the constitution to keep the federal government within the bounds of its delegated powers.

The Endangered Species Act was passed by Congress in 1973. As in the case of Mr. Ming-Lin, the federal government is enforcing this law throughout the United States without regard for the prohibition of Clause 17. The Senate Report on the Act in 1973 acknowledged the limited jurisdiction of the federal government: “For the first time, the knowing taking of an endangered animal in violation of the law is a criminal offense where the federal government has retained management power.” (emphasis added)

In 1988 there was an amendment to the Act to afford greater protection to plants. A Senate report again acknowledges the federal government’s limited jurisdiction: “Currently, anyone who captures, kills or harms a listed animal commits a violation of the Act for which substantial criminal and civil penalties may be imposed. However, it is not unlawful to pick, dig up, cut or destroy a listed plant unless the act is committed on federal land. Even on Federal land, however, there is no violation unless the plant is removed from the area of federal jurisdiction.” (emphasis added)

In 1956 Congress prepared a report entitled Jurisdiction Over Federal Areas within the States. The report contained an in-depth legal analysis of federal jurisdiction over land located within a state. The authors of the report reached the following conclusion based on clause 17 and decisions by the U.S. Supreme Court: “It scarcely needs to be said that unless there has been a transfer of jurisdiction (1) pursuant to clause 17 by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, . . .”

The lawbreaker, in other words, is not Mr. Ming-Lin. It is the federal governent. []