AFF Sentinel Vol.2, #45

How Does the Court Affect Cattlemen?

When I give presentations around the country, near the close is a list I term, "What You Can Do." At the top of the list is a recommendation that cattlemen monitor and understand national politics and policy more closely. I realize that true cowboy political junkies are few and far between. But we are living in a world where information, political thought, consumer trends, product innovations and cultural influences are communicated faster than ever before. It is critical to understand national and international nuances as cattlemen attempt to keep their product and their business in tune.

To some extent, most cattlemen as American citizens would have paid some attention to the Supreme Court nominations. Many Americans have not been happy with the Court's tendency over the years to act as an arm of the legislative branch and set policy rather than measure legislation against basic Constitutional law. Much has been written about the political left's violent opposition to President Bush's court nominations, especially the Supreme Court. The left has made significant use of court rulings in advancing their causes in recent decades. The appointments to the Supreme Court of the land, over time, have seismic implications to our business, political and social climate.

That was all true before a recent Supreme Court decision that really shook the earth. Many recall the decades ANCA and NCA labored to reduce or eliminate the estate tax, with measured success. Then business assets and land values began escalating and estate tax laws began applying to more small businesses. These folks discovered first hand how pernicious the death tax was, how it threatened the survivability of their family businesses. Then they were receptive to coalition efforts with NCBA and other farm groups and things began to advance more quickly to reform, possibility eliminate, the death tax.

The Supreme Court's decision on Kelo vs. New London simultaneously brought home to a much broader swath of Americans how critical Supreme Court nominations are and dramatically shocked Americans with its assault on private property rights. In Kelo, the Supreme Court extended the power of eminent domain to allow a city government to take property from private citizens and give it to another private entity to enhance the tax base, as opposed to a public use, like a highway.

While death tax opposition built gradually, the Supreme Court's sweeping weakening of a fundamental Constitutional right of American citizens may engender swift attention and coalition efforts never before seen between American agriculture and small business. But this time, the coalition should be even broader, because the fundamental principle of a private citizen's right to own and use private property, even their home, is involved.

At the heart of landowners' difficulties with the Endangered Species Act are the limitations on the use of their land and the cost of compliance with onerous and superfluous rules.

All three of these areas involve different aspects of a citizen's right to own, improve and retain the value and profits of his property. Seemingly guaranteed in the Constitution, they have been diluted and burdened by successive Supreme Court decisions until I think the Founding Fathers would be shocked and appalled. After all, the Constitution was written to protect the rights of citizens and limit the powers of government.

The decision in Kelo may finally be the straw that breaks the camel's back. Now it's not just farmers and ranchers who are up in arms about private property. Congress is already holding hearings to craft legislation to stop some of the takings of private property the Court has now allowed. Just as quickly cities and states around the country are accelerating actions to grab land they want for projects before anyone slams the door.

Because the Supreme Court has been so closely balanced between the activist judges willing to craft decisions more legislative than interpretive and those who wish to limit government intrusion to the more limited guidelines of the written Constitution, the appointments of one or two justices could potentially create a sea change on the Court. That possibility, added to the Democratic left's acute frustration at loss of power in Congress and the executive branch, has made this a big issue on the national scene.

People tend to think of Supreme Court decisions as the last word. But the Court is supposed to measure laws against the framework of the Constitution. That means that Congress can go back and try to enforce its original intent through new legislation if it feels the Court has not properly interpreted Congressional intent. The route may not be direct. Congressional legislation being developed, rather than prohibiting state and local governments from taking private property for private uses, focuses on making governments that do so ineligible for federal funds.

David Broder, in a column for the Washington Post (Colorado Springs Gazette, July 12, 2005) noted that much of the furor over Supreme Court nominees this year is because many Democratic senators "feel passionately" that President Bush has "abused the system" by going outside of what they regard as the mainstream to stack the courts with conservative judges. In another column (Gazette, Sept. 10, 2005), Broder asked if the Republican party really wanted to see a Bush re- made Supreme Court enable the Democrats to blame the GOP for reversing course on, among other things, the environment?

You bet, Mr. Broder. Bring it on. And you can add to the list things like government regulation, private property rights & eminent domain, the Endangered Species Act, the death tax and social engineering. On the environmental front, I'm betting there are a lot of Southerners less worried about preserving wetlands right now and all of us more concerned with allowing oil drilling and new refineries.

We'd love to see the Supreme Court reverse some directions and the GOP should be glad to take the credit - not be afraid to do so.

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