In the wake of the standoff at the Malheur National Wildlife Refuge, and before a similar incident occurs, perhaps in Idaho or Montana, it may be wise to review the constitutional underpinnings of congressional authority to regulate public lands.
The authority of Congress to regulate public lands is sweeping. Article IV, Section 3 of the Constitution provides: “The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” In 1802, Chief Justice John Marshall held for the Supreme Court that the Property Clause grants to Congress an “absolute and indisputable” power of governing. Justice Joseph Story, perhaps the greatest scholar ever to sit on the high court, observed in his magisterial three-volume treatise on the Constitution, written in 1833, that this power of Congress is “clearly exclusive and universal; and their legislation is subject to no control.”
The Property Clause endows Congress with the same plenary authority over U.S. property that a state legislature exercises over state soil and property. It has been exercised by Congress on a broad array of subjects since the dawn of the republic. Congress, for example, has acted to permit, as well as prohibit slavery; to decide whether the United States might be half-slave and half-free; to create, shape and empower territorial governments; to sell and lease public lands; and, among other acts involving national defense, immigration and revenue enhancement, it has enacted exclusive legislation governing the nation’s capital city.
While doubts have arisen over the relative wisdom of congressional decisions, the courts have treated as a closed case the constitutional authority of Congress to make those decisions.
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It is a fundamental principle of the Constitution, and the enumeration of powers doctrine, that where the power to govern is vested in a particular branch or department, that it may not be exercised by another branch or level of government. The proscription of usurpation is critical to our constitutional enterprise. Thus, the grant to Congress of the appropriations and lawmaking powers precludes their exercise by the president. This principle applies equally to state aggrandizement of federal authority. Thus, states may not usurp the constitutional authority of Congress to make “all rules governing immigration and naturalization,” as the court recently ruled. The sweeping constitutional authority of Congress to regulate public lands, then, bars state regulations of public lands, unless Congress decides to bestow limited authority on state governments to do so.
The clarity and simplicity of the Property Clause, bulked by two centuries of judicial decisions, paints a grim picture for those in Idaho who plea for “the state to take back its public lands.” There remains the need, moreover, for those citizens to review the Idaho Constitution and the statute that provided for Idaho’s admission to the Union.
The Idaho Constitution, Article 21, Section 19, disclaims Idaho’s title to federal lands. Idaho had never been given title to the federal lands not appropriated to Idaho at the time of statehood. The Idaho Admissions Act, section 7, moreover, reinforces the disclaimer. Idaho disclaimed any lands lying within the state.
No assertion of states’ rights can trump the Property Clause of the Constitution, which is the supreme law of the land. Those seeking state regulation of public lands must turn their efforts to Congress and seek a statute that would transfer control, responsibility and accountability for managing those lands to state officials. At this juncture, there is little congressional interest in doing that.
David Adler is president of The Alturas Institute, established to advance civic education and civil dialogue. He has lectured nationally and internationally on the Constitution and presidential power.