Militia takes over Malheur National Wildlife Refuge headquarters

[hollohas]

I became interested in the constitutionality of Federal land ownership during the Bundy Ranch standoff.  I'm paraphrasing, but they had said they didn't believe they had any obligation to pay the Feds for using the land for grazing in part because they didn't think the Feds had the Constitutional authority to own it.  The Bundys did pay the fees to the county however.  This struck me as wrong in part because of the Property Clause.  I was familiar with it at the time and it was what all the media legal pundits and journalists referred to in their reporting of the standoff.  At the time it seemed to me cut a dry, the Feds CAN own land. 

I read some of the letters written by the Bundys arguing their case.  They didn't give much detail explaining why the government shouldn't own land, but it was enough to encourage me to research it further. 

This subject is rather hard to research because it really wasn't discussed much in any of the Founders' writting as far as I've seen.  Normally one can use the Federalist and Anti-federalist papers for reliable insight regarding what the Founder's intention was.  Or, the Constitutional Convention debate records are a very good source as well.  Federal Land ownership really doesn't appear much in those documents.  But here are the arguments as I worked through them...

First, is the arguement that the Property Clause only applied to territories.  That, I think, is a pretty loose argument.  Not much to go on there.  I think it's fairly clear that all property is included in the Property Clause. 

Then there is the argument that the ownership of property is not part of the Article 1, Section 8 Enumerated Powers and therefore the Federal Government has no Constitutional authority there. This is pretty loose as well.  Section 8, Clause 17, called the Enclave Clause covers, Federal property and most people simply understand the fact it's purpose was to establish DC.  But there's more to it...

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings"

Well, there it is, the Constitution says that Congress can own property as territory (prior to the formation of a State) or enclaves (property given/sold to the Feds by a State).

So far, I'm only arguing in support of the notion that the Feds can own land. Nevada for example didn't want to manage all that desolate land so they gave it to the feds. It must be Constitutional then...

But read Section 8, Clause 17 again.  Specifically the last part that says WHAT places Congress can purchase from the States and WHY.  It says "needful"...

That's it.  Sure, there is nothing in the Constitution that prohibits the Feds from owning land, and the Property Clause and Enumerated Powers both make it clear that the Feds have control over land they own (and by relation, have been granted the power to own it).  But what the Constitution does limit, is the Feds ability to ACQUIRE land from the States.  That authority is extremely limited by the Constitution. 

This limit on the acquisition of land was so strict that Thomas Jefferson, whom himself authorized James Monroe to negotiate the Louisiana Purchase , had reservations about Congress passing the Treaty without first passing a Constitutional Amendment giving Congress the power to acquire foreign territories.  In 1803 he wrote "The General Government has no powers but such as the Constitution gives it… it has not given it power of holding foreign territory, and still less of incorporating it into the Union. An amendment of the Constitution seems necessary for this."

He even drafted an amendment himself but Congress disregard it as unnecessary and that it would stale the extremely important land purchase. 

The Feds may have the Constitutional grated power to own land, but the Constitution does not grant them the ability to ever have acquired all this western land from the States it in the first place!

How can anyone argue that the federal ownership of 80-some percent of land within a state border can be classified as "...for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings" It doesn't, plain and simple. The Constitution doesn't say anything granting the Feds power to acquire land for no other reason than to manage, retain, to maintain, to preserve, to hold, etc.

The Feds acquisition of the land from the Westen States was unconstitutional at the very start and therefore their ownership of said land is illegal.

And anyone who has done any reading of the Founders documents can easily see that the Feds being a majority holder of State land is 100% opposite of the idea of state sovereignty and limited Federal government they so cherished.

A very good paper on the subject is titled "Federal Land Retention and the Constitutio's Property Clause: The Original Understanding" written by Robert G Natelson and published in the University of Colorado Law Review. The paper has a wealth of sources to research as well.

PS - I LOVE public lands and use them regularly. Even if the Feds mismanage much of it. But that doesn't change the fact that the Feds have no right to own most of it in the first place. The argument is valid even if public land is desirable. To me the Constitution is black and white and I believe it should be the law of the land above all else. It obviously isn't anymore, but that's the ideal I base my beliefs on.