The Property Clause, Article Iv, and Constitutional Structure

• Publication year: 2022

The Property Clause, Article IV, and Constitutional Structure

Eric Biber

THE PROPERTY CLAUSE, ARTICLE IV, AND CONSTITUTIONAL STRUCTURE

Eric Biber^*

Abstract

Federal public lands account for approximately thirty percent of the United States and have been the grounds for fierce political and legal battles: whether to lease those lands for the extraction of fossil fuels, whether to protect landscapes and Native sacred sites as national monuments, whether federal law on the public lands preempts state law, and even whether federal ownership of lands within states is constitutional. Those battles turn on questions of executive versus congressional power to control the management of the public lands, and state versus federal authority on those lands. Answering those questions depends on a proper understanding of federal power under the Property Clause—Article IV, Section 3, Clause 2 of the U.S. Constitution—which empowers Congress to "dispose of and make all needful Rules and Regulations" for the property of the United States, including the public lands.

Scholars have debated the meaning of the Clause and how it might inform separation-of-powers and federalism questions. But until now, they have not considered in-depth the implications of the location of the Clause in Article IV of the Constitution. Article IV's provisions address interstate relationships, generally mediated outside the federal government, as part of an effort to build those relationships and advance a stronger Union. The history of the drafting of the Property Clause shows that, while the Clause authorizes a powerful role for the federal government in managing the public lands, the Clause was intended to resolve interstate disputes among the original thirteen states as to western land claims and the creation of new western states.

This understanding of Article IV as a "horizontal federalism" Article focused on interstate relations leads to important conclusions as to how to properly understand the Property Clause. It supports emphasizing congressional primacy in implementing the Clause—although this congressional primacy is moderated by the recognition of a necessary executive

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power that has discretion to manage the public lands where Congress is silent. This understanding also supports a strong federal role vis-à-vis states in the management and retention of public lands within those states. The Article applies these principles to resolve key disputes over public lands management, such as executive power to revoke national monuments or terminate existing fossil fuel leases, and claims that federal power over public lands should be constrained or even eliminated. It also identifies how a "horizontal federalism" understanding of Article IV could resolve other important questions about how to interpret the Property Clause and other provisions of Article IV.

Table of Contents

Introduction.............................................................................................741

I. Property Clause Conflicts.........................................................747

A. Executive Versus Congressional Power ................................... 749
B. Preemption ............................................................................... 752
C. Divestiture of Federal Lands Under the Equal Footing Doctrine.................................................................................... 753

II. Understanding the Property Clause in Context ...................755

A. The Resolution of State Western Land Claim Disputes ............ 756
B. A Horizontal Federalism Model for Article IV......................... 760
C. Executive Management Power ................................................. 768

III. Applications to Property Clause Conflicts............................770

A. Protecting Federal Title ........................................................... 771
B. Preemption ............................................................................... 781
C. Equal Footing and Equal Sovereignty ...................................... 785

IV. Extensions ......................................................................................793

A. The Appointments Clause ......................................................... 794
B. The Courts ................................................................................ 796

Conclusion.................................................................................................798

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Introduction

In early 2021, the Biden administration froze issuance of all new oil and gas leases on federal lands in the United States as part of an aggressive climate effort.¹ That step triggered political pushback on the grounds that the freeze exceeded executive power under the statutes that guide development of fossil fuels on federal lands.²

Just four years earlier, the Trump administration unilaterally scaled back national monuments that had been proclaimed by Presidents Obama and Clinton on federal public lands in Utah.³ National monument designation can restrict the development of public lands for resource extraction, including minerals, oil, and gas.⁴ The Trump administration was sued for overreach, on the grounds that it had exceeded its powers under the relevant statutory schemes.⁵

In early 2016, armed groups occupied a federal national wildlife refuge in southeastern Oregon, contending that the federal government had no power to retain land ownership in the western United States and that the millions of acres of federal lands in the West—including national parks and national forests—should be turned over to the states, counties, or private parties.⁶ The occupation ended in violence and death.⁷ The legal arguments behind it have a long preceding history, including threats of litigation by the state of Utah to force the

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transfer of federal public lands to Utah⁸ and prior political claims for state or local government ownership of federal lands.⁹

States like California and Oregon have sought to restrict mining activities on federal lands that they believe cause significant environmental harms—in particular, mining for gold in streambeds.¹⁰ Those states passed laws restricting or temporarily prohibiting gold mining on riverbeds in their states. Mining groups challenged the laws as preempted by federal law.¹¹

These different conflicts—all with varying policy and ideological valences—are examples of the many disputes over the management of the almost thirty percent of the country owned and managed by the United States.¹² These disputes date back to the first days of the federal government in the late eighteenth century and have real policy stakes—touching climate change, the conservation of lands sacred to Native American communities and important for biodiversity, the relationship of the federal government to states in the West, and the protection of water quality.

Resolving these legal and policy disputes implicates constitutional law, as applied through the Property Clause, the constitutional provision that is the basis for most federal land management and ownership in the United States.¹³ Does the Clause authorize federal law that preempts state law? Does it authorize

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federal land ownership within states? And what is the relationship between executive and congressional power in the implementation of the Clause?

The disputes about the meaning of the Property Clause and its relationship to the sovereignty of states have ramifications beyond the Clause itself. Arguments about the constitutionality of federal land ownership within states depend in part on the "equal footing" doctrine, a doctrine developed by the Supreme Court to limit the extent to which Congress can leverage its power over the admission of states so as to deprive those new states of equality in key components of their political sovereignty.¹⁴ Recently, the Supreme Court has controversially extended this case law to produce an "equal sovereignty" doctrine that required striking down a key provision of the Voting Rights Act on the grounds that the Act improperly treated states differently.¹⁵

This Article puts the Property Clause in a broader constitutional context by explaining how the Clause's history, text, structure, and placement in Article IV of the Constitution can help answer these difficult questions. The Clause was intended to resolve a dispute between states over conflicting claims to western lands after the American Revolution, responding to a major gap in the Articles of Confederation.¹⁶ The Clause empowers the federal government to have meaningful sovereignty in its management of those lands, ensuring that the federal government can prevent interstate disputes and facilitate the development of new, independent states. This role for the federal government as a neutral party between disputing states also means that it owns and manages the public lands for all Americans—whether in new states or old, whether in states that had western claims or no claims at all. This role does not change simply because the federal government owns land within the borders of a state. Accordingly, the Clause can be best understood as authorizing federal land ownership in states and authorizing federal preemption of contrary state law.

The Clause's text allocates management power to Congress, implying congressional primacy in management of federal lands vis-à-vis the Executive. The structure of Article IV further supports this reading. While the first three Articles of the Constitution create the structure for the nascent federal government, Article IV does something very different. All provisions of Article IV attempt to deepen the relationships between the component states in the

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Union, also known as "horizontal federalism."¹⁷ Facilitating deeper state-to-state relationships can involve connections directly between state governments—for example, in the extradition of a fugitive of justice...