By MICHAEL TAVOLIERO
Taking Back Alaska Part II
Alaska was admitted to the Union under the promise of self-governance and control over its vast natural resources. However, federal overreach has continuously eroded the state’s sovereignty, reducing it to a regulatory colony rather than an independent state.
The Supreme Court’s decision in Alaska Department of Environmental Conservation v. Environmental Protection Agency (2004) (ADEC v. EPA) solidified the federal government’s ability to override state regulatory decisions, while the historical expansion of federal power under NLRB v. Jones & Laughlin Steel Corp. (1937) provided the legal foundation for a bloated administrative state that dictates policies far removed from the constitutional structure of governance.
The Supreme Court’s recent decision in West Virginia v. EPA (2002), announced the arrival of the major questions doctrine, a substantive canon of construction that bars agencies from resolving questions of “vast economic and political significance” without clear Congressional statutory authorization. West Virginia v. EPA provides a pathway for curtailing these abuses. What will Alaska do to restore its rightful sovereignty over its land and economy?
Adding to this crisis is the fact that the federal government controls over 60% of Alaska’s land, a situation that is not only a direct violation of the promises made at statehood but also an unconstitutional concentration of power. The federal government’s continued dominion over vast swaths of Alaska prevents meaningful resource development, stifles economic growth, and undermines state sovereignty.
A concerted effort must be made to dismantle these unconstitutional regulatory regimes, overturn unjust legal precedents, and demand the transfer of all federal lands not explicitly authorized by the Constitution to the State of Alaska.
The Legal Framework of Federal Overreach: From NLRB v. Jones to ADEC v. EPA
The foundation of federal regulatory expansion was laid in NLRB v. Jones & Laughlin Steel Corp. (1937), where the Supreme Court drastically redefined the scope of the Commerce Clause. Prior to this decision, federal authority was limited to regulating actual interstate commerce, not the operations of individual businesses within state borders. NLRB v. Jones overturned this precedent by ruling that purely intrastate activities, such as labor disputes within a single manufacturing plant, could be federally regulated if they had a “substantial effect” on interstate commerce.
This ruling led to the unchecked growth of the administrative state, enabling federal agencies to exert direct control over economic activity that was traditionally under state jurisdiction. The National Labor Relations Board (NLRB) became an unaccountable entity that dictated employment and labor policies across all industries, regardless of whether their operations actually crossed state lines. This set the stage for broader federal interventions, including the disastrous ruling in ADEC v. EPA, where Alaska’s environmental policies were unilaterally overridden by a distant, unelected bureaucracy.
Why pretend Alaska has self-governance when Washington holds the ultimate veto? State agencies exist in name only, their authority a mere illusion—paper tigers against the iron grip of federal control. When over 60% of Alaska remains shackled under federal ownership, every state decision is subject to bureaucratic whim, every ambition throttled by a system designed to keep Alaska dependent. If sovereignty is just a show, why maintain the facade at all?
In ADEC v. EPA, the Supreme Court upheld the EPA’s authority to reject the Alaska Department of Environmental Conservation’s decision regarding Best Available Controlling Technology (BACT) for pollution control. This ruling stripped Alaska of its ability to manage its own environmental regulations and imposed an unlawful precedent where state agencies are treated as mere enforcers of federal policy rather than autonomous governing bodies. The logic of NLRB v. Jones—where the federal government dictates state economic policy under the guise of commerce—was here applied to environmental regulation, further entrenching federal control over state matters.
This continuous erosion of Alaska’s sovereignty is exacerbated by the reality that over 60% of the state’s land remains under federal control. This is not just an administrative burden—it is a direct contradiction to the constitutional limits on federal land ownership. The Constitution only permits federal land holdings for specific purposes such as military installations and national defense (Article I, Section 8, Clause 17). The vast swaths of Alaskan land controlled by the federal government do not meet these criteria and should rightfully be handed over to state control.
The federal government’s control over 60% of Alaska’s land is unconstitutional yet why hasn’t Alaska developed the legal predicate and aggressively gone to battle?
The federal government’s control over 60% of Alaska’s land exceeds constitutional limits on federal land ownership under the Enclave and Property Clauses. It violates the Tenth Amendment by denying Alaska full sovereignty over its land. It breaches the Alaska Statehood Compact and violates the Equal Footing Doctrine. It ignores constitutional limits on federal retention of land set by prior Supreme Court precedent.
Alaska has the constitutional right to demand the return of these lands, sue for enforcement of the Statehood Compact, and challenge federal overreach in court under these principles.
West Virginia v. EPA: A Pathway for Reclaiming State Sovereignty
A potential turning point in dismantling this federal regulatory colonization came in West Virginia v. EPA (2022), where the Supreme Court struck down the EPA’s authority to impose sweeping regulatory changes without clear congressional authorization. This case reaffirmed the principle that federal agencies cannot unilaterally expand their power beyond the limits set by Congress and the Constitution.
Key Findings from West Virginia v. EPA:
The EPA exceeded its statutory authority by attempting to regulate carbon emissions in a manner not explicitly authorized by Congress.
The Court reinforced the major questions doctrine, stating that regulatory agencies cannot decide issues of vast economic and political significance without explicit congressional approval.
This decision curbed the ability of unelected federal bureaucrats to impose broad, industry-altering mandates without legislative oversight.
The logic of West Virginia v. EPA provides a direct pathway for overturning ADEC v. EPA. The EPA’s interference in Alaska’s environmental decisions is a textbook example of bureaucratic overreach beyond the agency’s statutory authority. If the EPA’s emissions policies were unlawful under West Virginia v. EPA, then its ability to overrule ADEC’s permitting decisions must also be reevaluated under the same standard.
Furthermore, the case strengthens the argument that NLRB v. Jones was an unconstitutional expansion of the Commerce Clause. If federal agencies can no longer claim broad regulatory authority without explicit congressional approval, then the NLRB’s control over purely intrastate labor relations must also be challenged. The Supreme Court’s renewed commitment to limiting administrative overreach presents a unique opportunity for Alaska as well as all states to reclaim control over their labor laws, environmental policies, and land management decisions.
Restoring Alaska’s Sovereignty: A Plan of Action
Alaska must challenge NLRB v. Jones & Laughlin Steel Corp. Alaska has the legal resources to join legal challenges that seek to redefine the Commerce Clause and overturn the substantial effects test, restoring limits on federal power over intrastate activities. By following the thread of state sovereignty created by the West Virginia v. EPA decision, will this provide a strong precedent for rolling back Commerce Clause overreach in employment, business regulation, and resource development?
The Alaska Department of Law (DOL) must file a constitutional challenge against ADEC v. EPA. With this challenge, DOL files a lawsuit arguing that the EPA’s authority to override state permitting decisions is an unconstitutional delegation of power. By using the major questions doctrine, Alaska should argue that environmental regulatory decisions fall within state authority unless explicitly preempted by Congress. In the same breath with this filing, Alaska now can also demand the transfer of federal lands to the State of Alaska
Alaska’s state legislature must push for legislation that forces the federal government to relinquish all landholdings not explicitly authorized by the Constitution. The Alaska Statehood Compact must be enforced, compelling the federal government to honor its agreements and return lands necessary for the state’s economic viability.
Alaska’s most strategic legal doctrine is a combination of Major Questions Doctrine (to limit federal agencies) and Tenth Amendment-Based Compact Enforcement (to reclaim land and state sovereignty). This dual approach leverages Supreme Court precedent while forcing Congress to recognize Alaska’s constitutional right to full statehood.
No better time has ever occurred for Alaska to enlist the U.S. Department of Justice (DOJ) in its legal battle. This enlistment can take all of the following forms:
- Request a DOJ Amicus Brief in SCOTUS Cases
- Direct Negotiation with DOJ to Reverse Federal Land Holdings
- Suing the Federal Government WITH DOJ’s Support
- Leveraging DOJ’s Role in Environmental and Land Management Policy
Strengthen State-Based Resource Development Laws
Alaska’s legislature can pass constitutional provisions reaffirming exclusive state control over resource development and prohibiting deference to federal regulatory agencies.
The state must actively promote oil, gas, and mining projects without federal approval, setting the stage for a direct confrontation with Washington, D.C.
Conclusion
Alaska’s sovereignty is under assault from both internal and external forces. NLRB v. Jones laid the foundation for unconstitutional federal overreach, ADEC v. EPA solidified Washington’s power to override state authority, and the continued federal control of over 60% of Alaska’s land is a direct affront to Alaska’s status as a state.
Can West Virginia v. EPA serve as a precedent to dismantle these overreaches? Will a shift in leadership at the U.S. Department of Justice create an opening for Alaska to redefine its relationship with the federal government?
The time has come to challenge these unconstitutional precedents, reclaim state land, and assert Alaska’s rightful control over its own destiny. Without decisive action, Alaska will remain a regulatory colony—hemorrhaging millions, if not billions, to its own gelded agencies, which exist only to enforce federal dictates. This gutted regulatory authority serves only Washington bureaucrats.
Are we truly a sovereign state, or have we become nothing more than a province of an overreaching federal government?
Michael Tavoliero is a writer for Must Read Alaska.