The contested frontier: Federal power, state sovereignty, and the architecture of american governance

“ By this we mean that until the local law is displaced or overruled by paramount legislation adopted by congress, the courts have no other guide, no other law to administer on the subject, than the local or state law. Our system of government is of a dual character-state and federal. The states retain general sovereignty and jurisdiction over all local matters within their limits; but the United States, through congress, is invested with supreme and paramount authority in the regulation of commerce with foreign nations and among the several states. ”

“ Businessmen and city officials generally encouraged automobile commuting to in-town employment and did not oppose providing daytime storage space for the vehicles.
But as problems of city street congestion led to greater penetration of rural highways into the heart of central cities, more people were affected by the taking of right-of-way and by the construction and operation of highways. Organized opposition to the urban highway improvement program became a major factor in determining the course of Federal and State high- way transportation legislation in the 1960's. ”

“ The principle of local independence is naturally liable to exaggeration and abuse. The State authorities have ever shown a tendency to claim absolute sovereignty, and to array their will against the authority of the Federal Government. ”

“ However, mechanisms have been created in the interrelated, yet independent, nature of the Federal-State partnership and in the establishment of independent offices of right-of-way and environment to assure that these concerns receive their full consideration in the building of a highway. The existence of these mechanisms do not guarantee the successful solution to all the problems affecting man’s total environment. ”

“ In the Background Statement, it was noted that “Since Sagamore, very substantial progress has been made in cooperative efforts between state highway departments and local officials in the planning of highways and land use in urban areas.” After commenting on specific areas of progress since Sagamore, it was observed that “. . . the concept that urban highway systems should be planned in conjunction with comprehensive community planning is now generally and widely accepted.” ”

“ In line with the Park Service’s usual terminology, ANILCA calls each such park or other area a “conservation system unit.” §3102 (4) (“The term... means any unit in Alaska of the National Park System”) ; see 54 U. S. C. §100102 (6) (similar) .
In sketching those units’ boundary lines, Congress made an uncommon choice—to follow “topographic or natural features,” rather than enclose only federally owned lands. §3103 (b) ; see Brief for Respondents 24 (agreeing that “ANILCA [is] atypical in [this] respect”) . In most parks outside Alaska, boundaries surround mainly federal property holdings. ”

“ See Brief for State of Alaska as Amicus Curiae 12. And rivers function as the roads of Alaska, to an extent unknown anyplace else in the country. Over three-quarters of Alaska’s 300 communities live in regions unconnected to the State’s road system. See id., at 11. Residents of those areas include many of Alaska’s poorest citizens, who rely on rivers for access to necessities like food and fuel. See id., at 11–12. Who knows? maybe John Sturgeon could have found a comparable hunting ground that did not involve traveling by hovercraft through a national park. ”

“ Roadside development programs were normally limited to areas within right-of-way lines to improve appearance and safety, to provide amenities for the traveling public, to facilitate maintenance, and to control runoff and erosion. Development of private land on the other side of these lines might greatly affect the capacity or the safety of the highway or the view seen by the motorist, but normally this development could only be controlled through such measures as zoning, and this was considered, by State highway officials, to be the province of local governments. ”

“ If it be the wish of the people that the construction of roads and canals should be conducted by the Federal Government, it is not only highly expedient, but indispensably necessary, that a previous amendment to the Constitution, delegating the necessary power and defining and restricting its exercise with reference to the sovereignty of the States, should be made. ”

“ The longest delays, the most unsatisfactory conferences, and the most troublesome routine in the execution of the present projects have arisen because the Federal aid and supervision of local funds was not thought of when the fiscal regulations of the States and counties were made.
We find that many States incorporate into their State road laws certain details of design and methods of construction which, in any general distribution of national aid, would at once act as checks on supervision by the National Government. ”

“ We thus arrive again at the conclusion that the Park Service may not prevent John Sturgeon from driving his hovercraft on the Nation River. We held in an earlier part of this opinion that the Nation is not public land. See supra, at 12–15. And here we hold that it cannot be regulated as if it were. Park Service regulations—like the hovercraft rule—do not apply to non-public lands in Alaska even when those lands lie within national parks. Section 103 (c) “deem [s] ” those lands outside the parks and in so doing deprives the Service of regulatory authority. ”

“ The hovercraft rule applies only inside park boundaries. 36 CFR §1.2 (a) (“regulations contained in this chapter apply to all persons entering, using, visiting, or otherwise within... [w] aters subject to the jurisdiction of the United States located within the boundaries of the National Park System”) . The Nation River is, for legal purposes, outside of park boundaries. The hovercraft rule therefore does not apply on the Nation River. ”

“ ANILCA changed nothing for all the state, Native, and private lands (and waters) swept within the new parks’ boundaries. Those lands, of course, remain subject to all the regulatory powers they were before, exercised by the EPA, Coast Guard, and the like. But they did not become subject to new regulation by the happenstance of ending up within a national park. In those areas, Section 103 (c) makes clear, Park Service administration does not replace local control. For that reason, park rangers cannot enforce the Service’s hovercraft rule on the Nation River. ”

“ And no one disputes that Sturgeon was driving his hovercraft on a stretch of the Nation River (a navigable water) inside the borders of the Yukon–Charley (a national park) . So case closed. Except that Sturgeon lives in Alaska. And as we have said before, “Alaska is often the exception, not the rule.” Sturgeon I., 577 U. S., at __ (slip op., at 14) . Here, Section 103 (c) of ANILCA makes it so. As explained below, that section provides that even when non-public lands—again, including waters—are geographically within a national park’s boundaries, they may not be regulated as part of the park. ”

“ There must, thirdly, be a Government—that is, one or more persons who are the representatives of the people and rule according to the law of the land. An anarchistic community is not a State.
There must, fourthly and lastly, be a Sovereign [Pg 109] Government. Sovereignty is supreme authority, an authority which is independent of any other earthly authority. Sovereignty in the strict and narrowest sense of the term includes, therefore, independence all round, within and without the borders of the country. ”

“ It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is territorial supremacy. As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is personal supremacy. ”

“ International Persons are as a rule single Sovereign States. In such single States there is one central political authority as Government which represents the State, within its borders as well as without in the international intercourse with other International Persons. Such single States may be called simple International Persons. And a State remains a simple [Pg 133] International Person, although it may grant so much internal independence to outlying parts of its territory that these parts become in a sense States themselves. ”

“ Now if a Federal State is recognised as a State of its own, side by side with its member-States, it is evident that sovereignty must be divided between the Federal State on the one hand, and, on the other, the member-States. ”

“ Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.
From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the government must cease. There is no other alternative ”

“ As justly might my lawyer, when I no longer need his services, attempt to coerce me into a continuance of business relations, by invading my residence with a loaded pistol. The States, without extinguishing their sovereignty, created the Federal Government; it is the child of State legislation, and now the child seeks to chastise and control the parent. The General Government can possess no inherent or self-created function; its power, its very existence, were granted for certain uses. As regards your State's connection with that Government, no other State has the right to interfere ”

“ Then, at the worst, the seceding States are guilty of a breach of contract with the remaining States, but not with the General Government, with which they made no contract. They formed a union, it is true. But of what? Of sovereignties. How can those States be sovereignties which admit a power above them, possessing the right of coercion? To admit the right of coercion is to deny the existence of sovereignty. ”

“ The third and most important factor is, that the science of politics has learned to distinguish between sovereignty of the State and sovereignty of the organ which exercises the powers of the State. The majority of publicists teach henceforth that neither the monarch, nor Parliament, nor the people is originally Sovereign in a State, but the State itself. Sovereignty, we say nowadays, is a natural attribute of every State as a State. But a State, as a Juristic Person, wants organs to exercise its powers. ”

“ The Government and the people The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. It is hereby, accordingly, declared that: (a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority; (b) the security and welfare of the people shall be the primary purpose of government: and (c) the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution. ”

“ If the act which the State Attorney-General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States. ”

“ They who would escape the conclusion at which we wish to arrive must take the position not only that, in our system, the States may prohibit the use of their State agencies to the General Government in carrying the supreme law into effect within their boundaries, but this further position, that it is not in the power of the Federal Government to demand of any one in a State to perform a duty essential to the execution of the obligations inscribed in the Constitution. ”

“ The Constitution is harmonious in its complicated structure. As the Federal Government is the repository of the power over foreign intercourse, so the inter-State intercourse is established upon a fixed and stable basis, by dispensing with comity and the rule of the publicists, and making the obligation to render criminals to the jurisdiction they have offended a perfect obligation, in express constitutional compact. ”

“ BERT FROST, IN HIS OFFICIAL CAPACITY AS ALASKA REGIONAL DIRECTOR OF THE NATIONAL PARK SERVICE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 26, 2019]
Justice Sotomayor, with whom Justice Ginsburg joins, concurring.
Professors have long asked law students to interpret a hypothetical ordinance that prohibits bringing “a vehicle into the park.” [1] The debate usually centers on what counts as a “vehicle.” Is a moped forbidden? How about a baby stroller? In this case, we can all agree that John Sturgeon’s hovercraft is a vehicle. ”

“ But Sturgeon claims that Congress created an Alaska-specific exception to that broad authority when it enacted the Alaska National Interest Lands Conservation Act (ANILCA) , 94 Stat. 2371, 16 U. S. C. §3101 et seq. In Alaska, Sturgeon argues, the Park Service has no power to regulate lands or waters that the Federal Government does not own; rather, the Service may regulate only what ANILCA calls “public land” (essentially, federally owned land) in national parks. And, Sturgeon continues, the Federal Government does not own the Nation River—so the Service cannot ban hovercrafts there. ”

“ And the Park Service may then “administer [] ” the land just as it does (in the second sentence’s phrase) the other “public lands within such units.” Ibid. In thus providing a way out of the Section’s first two sentences, the third underlines what they are doing: insulating the state, Native, or private lands that ANILCA enclosed in national parks from new and unexpected regulation. In sum, those lands may be regulated only as they could have been before ANILCA’s enactment, unless and until bought by the Federal Government. ”

“ The Court holds only that the National Park Service may not regulate the Nation River as if it were within Alaska’s federal park system, not that the Service lacks all authority over the Nation River. A reading of ANILCA §103 (c) that left the Service with no power whatsoever over navigable rivers in Alaska’s parks would be untenable in light of ANILCA’s other provisions, which state Congress’ intent that the Service protect those very same rivers. Congress would not have set out this aim and simultaneously deprived the Service of all means to carry out the task. ”

“ Park Serv., Kobuk Valley National Park: Land Protection Plan 123–124 (1986) (noting that “ [w] hile [Park Service] regulations do not generally apply to private lands in the park (Section 103, ANILCA) ,” the regulations “that do apply” include those issued under “the Alaska Anadromous Fish Act, the Endangered Species Act, the Clean Water and Clean Air acts, and the Protection of Wetlands, to name a few”) ”

“ Good roads were an important link in the creative force that is transportation that started from the waterways, to the railways, to roadways, and on to the airways.
A continuing theme throughout the Chief’s years with the Bureau of Public Roads was the importance of the principle of Federal-State cooperation in the framework of our form of government. Pyke Johnson describes this belief as “the continued achievement of an engineering job of the magnitude of our highway program [that] must rest upon the essential premise that here we are dealing with the lives of people. ”

“ While the Interstate System is a national system connecting all States, it is a part of the State highway system in each of the States in which it is located. Federal highway funds, derived from highway-user taxes, are used together with appropriate State funding for the construction of the Interstate System, but the "ownership" is with the States, and the entire burden of maintenance, administration, and regulation falls upon the States and localities. ”

“ First a State borrows the money from the fund for right-of-way acquisition on a specific project. Sometime during the 2-year to 10-year period the right-of-way is acquired, construction plans are completed, and the construction project is ready to be advertised for bids. At this point in time, the State must pay back 100 percent of its loan without interest. For the right-of-way purchased, the State must provide its matching share from its own revenues while the Federal share will be paid from the current fiscal year highway funds for the project. ”

“ If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. ”

“ Purposes, derived from context, informed by history, and tested by recognition of related consequences, will more often lead us to legally sound, workable interpretations–as they have consistently done in the past. These methods of interpretation can help voters hold officials accountable for their decisions and permit citizens of our diverse democracy to live together productively and in peace–basic objectives in America of the rule of law itself. ”