The Bundy stand-off in Nevada has induced several people to ask me about the extent to which the federal government can own land, at least under the Constitutionโs intended meaning. As it happens, in 2005 I studied the issue in depth, and published the following article:ย Federal Land Retention and the Constitutionโs Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005).
In a nutshell, hereโs what I found:
(1) Most commentators on the issue have staked out one of two polar positions. One position, which is current U.S. Supreme Court doctrine, is that the federal government may acquire and own any land it wishes for any governmental purpose, not just for its enumerated powers. The other polar position is that the federal government may own land only for the purposes enumerated in the Enclave Clause (the national capital and โForts, Magazines, Arsenals, dock-Yards, and other needful Buildingsโ) and that the โequal footing doctrineโ requires that all other federal land within a prospective state be handed over the state government upon statehood.
(2)ย In fact, both polar positions are falseโand very clearly so.ย This shines through when you study the Constitutionโs text, meaning, and background. By โbackground,โ I mean its drafting history, the ratification debates, 18th century law, and so forth. However the constitutional text alone should be sufficient to cast both polar claims into doubt. The text of the Constitution grants the federal government no plenary power to hold land, only to dispose. A general power to hold is just not in there. The second polar position is also contradicted by the text: The equal footing doctrine is not there either. (It was a feature of certainย pre-constitutionalย documents, such as theย Northwest Ordinance.)
(3) The Constitution grants the federal government authority to acquire real estate and other property to carry out any enumerated purpose, either in the exercise of a core power (such as โmaintain a Navyโ) or through the implied powers memorialized in the Necessary and Proper Clause. Thus, Congress may acquire land to build โpost Roadsโ (limited access highways), house tax collectors, and build lighthouses under the Commerce Power.
(4) Further, the Constitutionโs Treaty Power authorizes the federal government to acquire territory.
(5) However, land acquiredโthrough, for example, the Treaty Powerโmay be held only for enumerated purposes. Land not needed for such purposes must be disposed of within a reasonable time. The federal government should have disposed of BLM grazing land long ago.
(6) In fact, for the federal government to own a large share of American real estate (currently about 28 percent) is directly contrary to certain values the Constitution was designed to further.
(7) โDisposalโ does not require handing real estate over to state government. On the contrary, in many situations doing so would conflict with federal officialsโ duties of trust. In each instance, disposal should be effectuated so as to further the general welfare. In the case of some parcels, it may mean transferring to state government. But it may also require selling to the highest bidder, or, in the case of environmentally sensitive lands, transferring to perpetual environmental trusts, as is commonly done in England.
(8) The Enclave Clause (Article I, Section 8, Clause 17) is really more about governmental jurisdiction than ownership. The federal government can have an enclave in which much of the territory is titled to private partiesโas is true of Washington, D.C. Itโs just that in an enclave, federal rather than statejurisdictionย is supreme. Enclaves may be held only for enumerated purposes (as signaled by the use of the 18th century legal term โneedfulโ). State consent to creation of an enclave is required, and consent can be conditional upon the federal government honoring particular terms.
(9) The Enclave Clause was sold to the ratifying public on the basis that enclaves would be relatively small. Holding massive tracts of undeveloped land (such as in Yosemite National Park, nearly 750,000 acres) as enclaves is not what the Founders had in mind.
(10) This is signaled by the Constitutionโs use of the word โBuilding.โ In the 18th century, the term did not have to mean an enclosed space, but it did have to refer to a fabricated construction of some kind, since as a dockyard or (in modern terms) an airport runway.
(11) But not every parcel of federal land need be an enclave: In fact, most are not and should not be. Non-enclave land owned by the federal government is held under the Property Clause (Article IV, Section 3, Clause 2), and should be held only for enumerated purposes. Grazing, for example, is not an enumerated purpose.
(12) Non-enclave federal property within states is subject to state law. Contrary to current Supreme Court doctrine, when the federal government owns non-enclave land, the federal government usually should be treated like any other landowner, so long as the state respects the discharge of legitimate federal functions.
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