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09/13/2017

Jeffrey M. Schmitt: A Historical Reassessment of Congress's 'Power to Dispose of' the Public Lands
Michael Ramsey

Jeffrey M. Schmitt (University of Dayton - School of Law) has posted A Historical Reassessment of Congress's 'Power to Dispose of' the Public Lands (Harvard Environmental Law Review, forthcoming 2018) on SSRN.  Here is the abstract:

The Property Clause of the Constitution grants Congress the “Power to Dispose” of federal land. Congress uses this Clause to justify permanent federal landownership of approximately one-third of the land within the United States. Legal scholars, however, are divided as to whether the original understanding of the Clause supports this practice. While many scholars argue that the text and intent of the framers show that Congress has the power to permanently own land within the states, others contend that these sources demonstrate that Congress has a duty to dispose of all federal land not held pursuant to another enumerated purpose. This scholarly debate has become increasingly important in recent years, as a popular movement for state ownership of federal land has reemerged in the West. 

This Article argues that the debate over the history of the Property Clause should move beyond the Founding. The original public meaning of the text, intent of the framers, and precedent of the early Supreme Court simply do not resolve the issue of whether Congress’s Duty to Dispose includes the power to permanently retain land within the states. This Article therefore provides the first detailed examination of how Congress’s Power to Dispose has been understood since the Founding. It concludes that, although western extremists have repeatedly challenged Congress’s power when federal land policy has restricted western development, dominant opinion has always supported a broad construction of Congress’s power. In fact, those who favor federal land ownership have long argued that giving land to individual states would violate a constitutional obligation for Congress to use the land for the common benefit. When constitutional history is properly applied to Congress’s Power to Dispose, it therefore strongly supports federal land ownership.

(Via Larry Solum at Legal Theory Blog, who says: "Very interesting and recommended!").

I haven't looked at the issue closely, but it seems a stretch to say that Congress having the power to "dispose" of land implies a duty to do so. Nor does it seem that Congress needs an enumerated power to "retain" land, because the land does not belong to Congress.  Of course, the land (or other property) would need to be obtained for the United States pursuant to an enumerated power (by Congress or another branch), but once obtained Congress has -- by the same clause of Article 4, Section 3 -- the power to manage it (to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.").

Mostly I'm just happy Professor Schmitt uses "A Historical Reassessment ..." rather than the malign "An Historical Reassessment..."