The Property Clause


Utah’s new 'Sovereignty Act' has reignited discussions about States’ Rights and methods to counter federal overreach. Passed in January 2024, this act “establishes a framework for the Legislature, by concurrent resolution, to prohibit the enforcement of a federal directive within the state by government officers if the Legislature determines the federal directive violates the principles of state sovereignty”. (Utah Constitutional Sovereignty Act)

The violation of State Sovereignty is a concern that many people and States share and has been the subject of much debate. The reason this issue is so concerning and surprising is the fact that the US Constitution and its Bill of Rights are specific in limiting federal control to a few defined areas. So, how does the national government get away with so much usurpation?

Since this article would be wholly inadequate to cover the vast field of government abuses, and since a major overreach of Federal power in Utah, and in many of the Western states deals with Federal Lands, we will focus just on this one area. This inquiry is pertinent, given the specificity of the US Constitution regarding the property the national government may own within a state and the purposes for which it may be owned (See Article I, Section 8, US Constitution)." As we will see, Supreme Court interpretations of the “Property Clause” in Article IV, section 3, Clause 2 have had a significant impact on this overreach.

Kleppe v. New Mexico, 426 U.S. 529 (1976)
The “Property Clause” delegates to Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”. Whenever there is a question about federal power over land that the United States owns, it always comes back to how the courts “interpret” this clause. The main case that guides the laws about “Federal Land” is called Kleppe v. New Mexico, a 1976 Supreme Court decision. In this case, the court explained its understanding of the federal government's power over land under the Property Clause. We will explore several parts of this case and discuss each part.

Federal Municipal "Police Power"
"Even over public land within the states, the general government has a power over its own property analogous to the police power of the several states, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case; Congress exercises the powers both of a proprietor and a legislature over the public domain."

The Court reasoned that even when it comes to public land within states, the federal government possesses authority over its property, which is similar to the police power held by individual states. The level to which it can exercise this power depends on the specific circumstances of each case. Congress acts both as a property owner and a legislative body regarding the public domain. The Court continues:

"Supremacy" Over State Law
"Although absent consent or cession a state retains jurisdiction over federal lands within its territory, Congress retains the power to enact legislation respecting those lands pursuant to the property clause of Article IV, sec. 3, clause 2, of the federal Constitution, which confers upon Congress power to dispose of and make all needful rules and regulations respecting property belonging to the United States; the federal legislation under the property clause necessarily overrides conflicting state laws under the supremacy clause in Article VI, clause 2, of the federal Constitution."

In other words, even though a state maintains jurisdiction over federal lands within its borders unless it has given consent or ceded them, Congress still holds the authority to pass laws concerning those lands. Any federal legislation passed under this clause takes precedence over conflicting state laws, as dictated by the Supremacy Clause in Article VI, Clause 2 of the federal Constitution. The Court then limits Congress’ “complete power … over particular public property entrusted to it.”

"Complete Power"
"Although the property clause in Article IV, sec. 3, clause 2, of the federal Constitution, conferring upon Congress the power to dispose of and make all needful rules and regulations respecting property belonging to the United States, does not authorize an exercise of a general control over public policy in a state, it does permit an exercise of the complete power which Congress has over particular public property entrusted to it."

While the Property Clause grants Congress the authority to manage and regulate property owned by the United States, it doesn't allow for broad control over public policy within a state. However, it does enable Congress to exercise complete authority over specific public property that has been entrusted to it.

Power "Without Limitations"
"The (Property) Clause must be given an expansive reading, for '[t]he power over the public lands thus entrusted to Congress is without limitations."' Kleppe citing United States v. San Francisco, 310 U.S. 16, 29 (1940).

Even though states have some authority over federal lands within their borders, federal power over these lands is considered very strong. So, any control a state might try to have over these lands could be overruled by federal law. In other words, the state's authority over federal lands is only valid if the federal government allows it. It's not full control by the state but more like managing the land with permission from the federal government.

In addition, Federal authority isn't limited to just the specific area of federal lands. It can extend beyond those borders to nearby non-federal lands if it's deemed necessary for the management of federal lands. The court case Camfield v. United States established this policy. Essentially, if it's in the “best interest” of federal lands, federal authority can reach beyond just the federal land itself. The court in Kleppe v. New Mexico emphasized this, indicating that federal power isn't confined to the boundaries of federal land parcels. Even though people might think of federal lands within a state as belonging to that state in terms of jurisdiction, legally, they're still under federal control. So, regardless of statehood, these lands are considered part of federal jurisdiction.

The Nature of Federal Governance Over Public Lands - Special Maritime and Territorial Jurisdiction

Historically, only specific powers were granted to the federal government, and each of these powers was supposed to have limits and controls. So, it's puzzling how, under the Property Clause of the Constitution, the federal government can have what seems like unlimited legislative power similar to that of a state government, especially within a state's borders without explicit state approval. Additionally, it's worth questioning how the federal government can exercise a type of local governing power called "police power" within states when this power was specifically kept by the states and not given to the federal government under its Constitution.

Since the U.S. Constitution was meant to place specific and restricted powers on the national government, how does it bypass these Constitutional limits with federal public lands within a state? This workaround seems to be through what's called "special (federal) maritime and territorial jurisdiction." This type of federal authority applies in the following situations:

"The term 'special maritime and territorial jurisdiction of the United States' ... as used in this title, includes: ... (3)Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by the consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building." U.S. Code, Title 18, pt. l,sec.7(3)

Special federal "maritime and territorial jurisdiction" is distinct and separable from federal power and jurisdiction under the Constitution:

"(Y)et it may be considered that the United States has TWO SOVEREIGNTIES, ONE OVER THE PEOPLE of the United States, THE OTHER OVER THE TERRITORIES; and that they are as FOREIGN TO EACH OTHER, as the parliament of England, and the legislature of Jamaica; and that the Courts of each are as FOREIGN as the Courts of Westminster and Kingston." American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511 (1828). (Emphasis added)

Since special federal "maritime and territorial jurisdiction" is different from federal power as defined by the Constitution, and it's even referred to as "extra-constitutional" by Justice Marshall in the American Ins. Co. case, it means that this type of governmental authority is outside the normal boundaries set by the Constitution. As an "extra-constitutional" power, Congress isn't limited by the constraints of the Constitution when using it, even though it's somewhat paradoxical because this power is said to come from the Constitution itself.

"… it is no longer doubted that the United States may acquire territory by conquest or by treaty, and may govern it through the exercise of the power of Congress conferred by 3 of Article IV of the Constitution 'to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." ... "IN EXERCISING THIS POWER, CONGRESS IS NOT SUBJECT TO THE SAME CONSTITUTIONAL LIMITATIONS, AS WHEN IT IS LEGISLATING FOR THE UNITED STATES." Hooven & Allison v. Evatt, 324 US 652 (1944). (Emphasis added)

The fact that federal power over public lands under the Property Clause is beyond what's directly stated in the Constitution becomes clear when we look at section 303(c)(1) of the Federal Land Policy and Management Act. This section allows the Secretary of the Interior to make agreements with local law enforcement to help enforce federal laws on public lands. These agreements can give local officials certain powers, such as to:

"(C)arry firearms,· ... ,· make arrests without warrant or process ... ,· search without warrant or process any person, place, or conveyance according to any Federal law or rule of law,· and seize without warrant or process any evidentiary item as provided by Federal law."

This authority to "make arrests" ... "search" ... and "seize without warrant or process" as provided by federal law exists despite the Fourth Amendment which requires that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."

Nonsense by Construction

Without really analyzing how the courts have interpreted the Property Clause, it can be difficult to see how nonsensical it is. Essentially, the court's interpretation of this Clause makes as much sense as a law that says, “The speed limit on all state highways shall be fifty-five miles per hour and drivers may drive on state highways at any speed they wish." This "nonsense law" has two parts connected by "and." Each part has a subject, a verb, and an object, or in the second part, two phrases: "on state highways" and "at any speed." It can readily be seen that these two parts contradict each other. A law can't say there's both a specific speed limit and no speed limit on the same roads for the same drivers at the same time. The unlimited speed in the second part cancels out or makes useless the limited speed in the first part because allowing unlimited speed includes all speeds up to and including fifty-five miles per hour. So, this law doesn't make sense and is called "nonsense." Now, let's think about the structure of the constitutional Property Clause:

"The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."

This Clause, as written, has two parts joined by "and." In the first part, "Congress" is the subject, and the verb is "have," with "shall" as an assisting verb. The object of the verb is "power," which is limited in its purpose and extent by the phrase "to dispose." In the second part, the subject is understood to be "Congress," and the verb is "make," with "shall" understood as an assisting verb. The object of the verb is "needful rules and regulations." The word "respecting" acts as a link, allowing the phrase "the territory or other property belonging to the United States" to modify both "power" in the first part and "needful rules and regulations" in the second part.

Based on this analysis, we notice that both the nonsensical "law" and the Property Clause are made up of two full clauses. To simplify our discussion, we'll call these four clauses "sub-clauses" to separate them from the term "Property Clause."

Now, let's examine how the United States Supreme Court has interpreted the Property Clause. The references provided from Kleppe v. New Mexico indicate that the court has interpreted the Property Clause as granting "complete" and "unlimited" legislative authority. Such extensive power cannot come solely from the specific "power to dispose," which is explicitly granted in the first part of the clause. Therefore, if Congress truly holds "complete" and "unlimited" legislative authority under the Property Clause, it must stem, not from the "power to dispose", but rather from the authority to "make all needful rules and regulations," which is delegated in the second part of the clause after the conjunction "and." This is where we encounter a situation akin to "nonsense," similar to our hypothetical speed limit "law."

If the authority to "make all needful rules and regulations" is indeed deemed by the court as a "complete" and "unlimited" legislative power, then the previously granted "power to dispose" becomes unnecessary and redundant. This is because a truly comprehensive and unrestricted legislative power would inherently include both the authority to dispose and the discretion to choose not to dispose. Therefore, the Property Clause, as currently interpreted by the United States Supreme Court, makes no more sense than the internally contradictory and nonsensical speed limit law discussed earlier. In both cases, a "law" starts with a specific instruction and ends with a broad statement that cancels out or makes unnecessary the preceding specific instruction.

It's highly unlikely that the Framers intended to include an internally contradictory or nonsensical clause in the Constitution. Yet, it's puzzling to understand why federal maritime law or laws governing pre-statehood territories would apply within supposedly sovereign states, spanning from their low-lying public lands to their highest forested areas. The nonsensical nature of federal power over public lands within supposedly sovereign states today likely doesn't stem from the Framers' intentions but rather from a misinterpretation of the Property Clause by the federal courts. This raises several important questions:

  1. How did the Property Clause end up being drafted in its current form?
  2. Why did the United States Supreme Court adopt an interpretation of the second part of the clause that makes the grant of power in the first part unnecessary?
  3. Does the court's interpretation of the Property Clause create a constitutional imbalance between the original states and newer states, particularly in the American West, which still have federal public lands within their boundaries?

In summary, the United States Supreme Court has characterized federal jurisdiction over public lands within states as follows:

  1. It originates from Article IV, Section 3, Clause 2 of the United States Constitution, known as the Property Clause.
  2. This jurisdiction is seen as a "complete" legislative power without limitations, similar to the legislative authority of individual states.
  3. It includes the authority to exercise municipal "police power."
  4. This jurisdiction is classified under the United States Code as "special maritime and territorial jurisdiction," which is considered a separate sovereignty foreign to the federal sovereignty authorized by the U.S. Constitution.
  5. It is deemed "extra-constitutional" because the Fourth Amendment of the Bill of Rights doesn't apply to the federal "police power" exercised in this context.
  6. This jurisdiction relies on a "nonsensical" interpretation of the Property Clause, as it involves an internal contradiction that makes the expressly delegated "power to dispose" unnecessary.

For a comprehensive study of the Property Clause, see Statehood: The Territorial Imperative by Bill Howell & Bill Redd


Jul 16, 2024

Clause 14 Land and Naval Forces Rules
To make Rules for the Government and Regulation of the land and naval Forces;
The Federal over reach applies to its employees or those bound to their rules.

Jul 16, 2024

Clause 14 Land and Naval Forces Rules
To make Rules for the Government and Regulation of the land and naval Forces;
The Federal over reach applies to its employees or those bound to their rules.

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