Limiting the Property Clause

Abstract

The Supreme Court has repeatedly held that the Property Clause of the Constitution grants Congress the power to regulate the public lands “without limitation.” This Article argues that the Court’s interpretation of the Property Clause is inconsistent with constitutional history, antithetical to structure principles of federalism, and undesirable from the standpoint of environmental law. Relying on new historical evidence, this Article contends that, when the country originally debated the meaning of the Property Clause, the leading statesmen of the early Republic rejected a broad interpretation of federal power. In sum, they believed that, while Congress should have a police power over the territories, it should have no more regulatory authority over federal land within a state by virtue of the Property Clause than a private landowner. Under this approach, federal legislation under the Property Clause would have no preemptive effect on state law. This Article further argues that, if the Court’s recent efforts to revive federalism are to be meaningful, it should return to the original understanding of the Property Clause. Congress’s unlimited legislative power over federal lands enables it overrule state policy on many of the core issues of state concern that justify the existence of federalism, including environmental law. This Article also advances the counterintuitive argument that reinvigorating federalism in this context would structurally favor more robust environmental regulation. While the federal government would retain the power to limit the use of its lands as a proprietor, the states would have the power to go beyond federal policy and prevent environmentally destructive activities as sovereign regulators. However, because the state’s regulatory power would not include the power to override federal property rights, the states would not have the power to authorize any land use that would conflict with federal rules. Unlike the current system of federal supremacy, a limited reading of the Property Clause would thus structurally favor conservation over development.