The Property Clause, Article IV, and Constitutional Structure

Emory Law Journal Emory Law Journal

Volume 71 Issue 4

2022

The Property Clause, Article IV, and Constitutional Structure The Property Clause, Article IV, and Constitutional Structure

Eric Biber

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Eric Biber,

The Property Clause, Article IV, and Constitutional Structure

, 71 Emory L. J. 739 (2022).

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THE PROPERTY CLAUSE, ARTICLE IV, AND

CONSTITUTIONAL STRUCTURE

Eric Biber



BSTRACT

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



Professor of Law, University of California, Berkeley, School of Law. Special thanks to Amy Collier,

Kara Coronado, Kelly Frost, Adrianna Lobato, Megan Raymond, Thomas Schumann, Jack Siddoway, and

Adnan Toric for invaluable research assistance. I am grateful to John Leshy, Dave Owen, Zachary Price, Richard

Primus, Nina Mendelson, Dan Farber, and the participants at the Legal Theory workshop at the University of

Michigan Law School for helpful comments. All errors remain my own.

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740 EMORY LAW JOURNAL [Vol. 71:739

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.

ABLE OF CONTENTS

NTRODUCTION ............................................................................................. 741

I. P

ROPERTY CLAUSE CONFLICTS ......................................................... 747

A. Executive Versus Congressional Power ................................... 749

B. Preemption ............................................................................... 752

C. Divestiture of Federal Lands Under the Equal Footing

Doctrine .................................................................................... 753

II. U

NDERSTANDING 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. A

PPLICATIONS TO PROPERTY CLAUSE CONFLICTS ............................ 770

A. Protecting Federal Title ........................................................... 771

B. Preemption ............................................................................... 781

C. Equal Footing and Equal Sovereignty ...................................... 785

IV. E

XTENSIONS ...................................................................................... 793

A. The Appointments Clause ......................................................... 794

B. The Courts ................................................................................ 796

ONCLUSION ................................................................................................. 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.

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.

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.

National monument designation can restrict the

development of public lands for resource extraction, including minerals, oil, and

gas.

The Trump administration was sued for overreach, on the grounds that it

had exceeded its powers under the relevant statutory schemes.

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.

The occupation

ended in violence and death.

The legal arguments behind it have a long

preceding history, including threats of litigation by the state of Utah to force the

See Exec. Order No. 14,008, 86 Fed. Reg. 7,619 (Jan. 27, 2021). That freeze was enjoined in the

summer of 2021 by a federal district court on the grounds that the freeze violated federal laws mandating a

minimum amount of oil and gas development on federal lands. See Niina H. Farah & Heather Richards, Federal

Judge Overturns Oil Leasing Freeze in Blow to Biden, POLITICO: E&E NEWS (June 16, 2021, 7:16 AM),

https://subscriber.politicopro.com/article/eenews/1063735105.

See Emma Dumain, Biden Drilling Order Sparks Legislative Backlash, POLITICO: E&E NEWS (Jan. 29,

2021, 6:53 AM), http://subscriber.politicopro.com/article/eenews/1063723841.

See Richard Gonzales, Kirk Siegler & Colin Dwyer, Trump Orders Largest National Monument

Reduction in U.S. History, NPR (Dec. 4, 2017, 5:14 AM), https://www.npr.org/sections/thetwo-way/2017/12/04/

567803476/trump-dramatically-shrinks-2-utah-national-monuments.

See infra Part III.A.

See, e.g., Complaint at 3–4, Nat. Res. Def. Council v. Trump, No. 17-cv-2606 (D.D.C. Dec. 7, 2017).

Kirk Johnson, Trial to Begin in Standoff at Oregon Wildlife Refuge, N.Y. TIMES (Sept. 12, 2016),

https://www.nytimes.com/2016/09/13/us/oregon-malheur-wildlife-refuge-bundy.html.

Julie Turkewitz & Kirk Johnson, Ammon Bundy and 7 Oregon Protestors Held; LaVoy Finicum is

Reported Dead, N.Y. TIMES (Jan. 26, 2016), https://www.nytimes.com/2016/01/27/us/oregon-armed-group-

arrest-bundy.html.

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742 EMORY LAW JOURNAL [Vol. 71:739

transfer of federal public lands to Utah

and prior political claims for state or

local government ownership of federal lands.

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.

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.

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.

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.

Does

the Clause authorize federal law that preempts state law? Does it authorize

Transfer of Public Lands Act and Related Study, H.B. 148, 2012 Gen. Sess. (Utah 2012); Debbie

Hummel, Utah Demands Federal Government Return Public Lands to State, REUTERS (Mar. 23, 2012,

11:50 PM), http://reuters.com/article/us-utah-lands/utah-demands-federal-government-return-public-lands-to-

state-idUSBRE82N03420120324. For legal analysis supporting Utah’s claims, see generally DONALD J.

KOCHAN, A LEGAL OVERVIEW OF UTAH’S HB 148–THE TRANSFER OF PUBLIC LANDS ACT (2013) [hereinafter

KOCHAN, A LEGAL OVERVIEW], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2200471; JOHN W.

HOWARD, JAMES S. JARDINE, RONALD D. ROTUNDA, RICHARD SEAMON & GEORGE R. WENTZ, JR., LEGAL

ANALYSIS OF THE LEGAL CONSULTING SERVICES TEAM PREPARED FOR THE UTAH COMMISSION FOR THE

STEWARDSHIP OF PUBLIC LANDS (2015), https://www.congress.gov/116/meeting/house/110088/documents/

HHRG-116-II13-20191017-SD046.pdf; Donald J. Kochan, Public Lands and the Federal Government’s

Compact-Based “Duty to Dispose”: A Case Study of Utah’s H.B. 148—The Transfer of Public Lands Act, 2013

BYU L. REV. 1133 (2013) [hereinafter Kochan, “Duty to Dispose”].

John D. Leshy, Are U.S. Public Lands Unconstitutional?, 69 HASTINGS L.J. 499, 574–75 (2018).

See Jonathan Rosenthal, People v. Rinehart: No Preemption of State Environmental Regulations Under

the Mining Act of 1872, 44 ECOLOGY L.Q. 555, 557 (2017).

See Sean Hecht, California Supreme Court Holds Unanimously that the State May Restrict Mining

Methods on Federal Lands, LEGALPLANET (Aug. 22, 2016), https://legal-planet.org/2016/08/22/california-

supreme-court-holds-unanimously-that-the-state-may-restrict-mining-methods-on-federal-lands/; Bohmker v.

Oregon, 903 F.3d 1029, 1031 (9th Cir. 2018).

See CONG. RSCH. SERV., FEDERAL LAND OWNERSHIP: OVERVIEW AND DATA 1 (2020), https://sgp.fas.

org/crs/misc/R42346.pdf.

See, e.g., Kochan, “Duty to Dispose,” supra note 8, at 1136 (stating that the legality of federal

ownership of public lands “depends, in large part, on the proper interpretation of the Property Clause in the

Constitution”); U.S. CONST. art. 4, § 3, cl. 2.

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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.

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.

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.

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

For example, the Court struck down a law that constrained where the newly admitted state of Oklahoma

could locate its state capitol. Coyle v. Smith, 221 U.S. 559, 574 (1911).

Shelby County v. Holder, 570 U.S. 529, 542 (2013).

See infra Part II.A.

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Union, also known as “horizontal federalism.”

Facilitating deeper state-to-

state relationships can involve connections directly between state

governments—for example, in the extradition of a fugitive of justice from one

state to another. Or it can involve connections between the residents or citizens

of the separate states—connections made through interstate travel and

commerce that in turn are facilitated by requiring states to grant equivalent

privileges and immunities to residents of other states. Horizontal federalism may

be advanced without any explicit mediating role by the federal government, as

in the Article IV Privileges and Immunities Clause, which simply requires that

citizens of one state “shall be entitled to all Privileges and Immunities of the

Citizens in the several States.”

Or, alternatively, there might be a role for the

federal government in advancing interstate connections, such as the

empowerment of Congress to implement the Full Faith and Credit Clause, which

ensures that judgments in one state are recognized in another state.

Regardless,

deepening relationships between states can help build a stronger Union

independent of the creation of a central government.

In contrast, “vertical federalism” focuses on the creation of a federal

government that acts as a unitary entity for the United States as a whole.

Vertical federalism entails the development of a federal government for the

nation—a government that is selected at least in part independently from the

individual states, that undertakes actions (such as in the realm of foreign affairs)

that are reserved to the nation and not the states, and that is a governmental

institution separate from the state governments. Vertical federalism can play a

role in advancing horizontal federalism. For instance, the strong federal power

under the Property Clause helps advance the horizontal federalism goals of

Article IV, given the role the Clause played in resolving interstate disputes over

western land claims. But vertical federalism often acts to advance a unitary

national government (for example, the relations of the United States with foreign

nations, in which states do not participate).

The clear text of the Clause and Article IV’s focus on “horizontal

federalism” creates a strong argument for the primacy of congressional

implementation of the Property Clause. Congress is a representative of states in

a way that the President is not—and as a “horizontal federalism” article, Article

IV requires a focus on interstate relations. Disposal of the public lands—the

For prior scholarship using this term to reflect state-to-state relationships in U.S. constitutional law,

see infra note 105.

U.S. CONST. art. IV, § 2.

Id. § 1.

See, e.g., Allan Erbsen, Horizontal Federalism, 93 MINN. L. REV. 493, 494 (2008).

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lands entrusted to the federal government by cessions from states as part of a

resolution of interstate disputes or that were obtained by the efforts of the states

together—therefore should require clear authorization by the congressional

representatives of those states.

There are necessary limits to congressional primacy in the context of the

Property Clause, however. The day-to-day management of those lands requires

many individual decisions by the Executive Branch, decisions that Congress will

rarely have the capacity to resolve ex ante through legislation. Thus, the

management (and protection) of those lands will require some inherent

discretion by the Executive. This managerial discretion is a counterpoint to a

“horizontal federalism” understanding of congressional supremacy under

Article IV.

This Article is the first to draw on a systematic analysis of Article IV as a

whole and its place in the overall structure of the Constitution and to use that

analysis to resolve crucial constitutional questions about the scope and

application of the Property Clause. There is a wide range of literature examining

the scope of federal power under the Clause, but it has not engaged in-depth with

the implications of the Clause’s inclusion within Article IV.

Nor has that

literature generally engaged with how the text of the Clause and its location

within Article IV might shape our understandings of the boundary between

For prior literature examining the Property Clause with respect to executive versus congressional

power, see generally David H. Getches, Managing the Public Lands: The Authority of the Executive to Withdraw

Lands, 22 NAT. RES. J. 279 (1982); Harold H. Bruff, Executive Power and the Public Lands, 76 U. COLO. L.

REV. 503 (2005); John Yoo & Todd Gaziano, Presidential Authority to Revoke or Reduce National Monument

Designations, 35 YALE J. ON REGUL. 617 (2018); John D. Leshy, A Property Clause for the Twenty-First

Century, 75 U. COLO. L. REV. 1101 (2004); Eugene R. Gaetke, Congressional Discretion Under the Property

Clause, 33 HASTINGS L.J. 381 (1981) [hereinafter Gaetke, Congressional Discretion]. For prior literature

examining the power of the federal government with respect to states under the Property Clause, see generally

Leshy, supra note 9; Dale D. Goble, The Myth of the Classic Property Clause Doctrine, 63 DENV. U. L. REV.

495 (1986); Eugene R. Gaetke, Refuting the “Classic” Property Clause Theory, 63 N.C. L. REV. 617 (1985)

[hereinafter Gaetke, Refuting]; Robert G. Natelson, Federal Land Retention and the Constitution’s Property

Clause: The Original Understanding, 76 U. COLO. L. REV. 327 (2005); Kochan, “Duty to Dispose,” supra note

8; Jeffrey M. Schmitt, Limiting the Property Clause, 20 NEV. L.J. 145 (2019) [hereinafter Schmitt, Limiting the

Property Clause]; David E. Engdahl, State and Federal Power over Federal Property, 18 ARIZ. L. REV. 283

(1976); Robert E. Hardwicke, Carl Illig & C. Perry Patterson, The Constitution and the Continental Shelf, 26

TEX. L. REV. 398 (1948); C. Perry Patterson, The Relation of the Federal Government to the Territories and the

States in Landholding, 28 TEX. L. REV. 43 (1950); Jeffrey Schmitt, A Historical Reassessment of Congress’s

“Power to Dispose of” the Public Lands, 42 HARV. ENV’T L. REV. 453 (2018); Peter A. Appel, The Power of

Congress “Without Limitation”: The Property Clause and Federal Regulation of Private Property, 86 MINN. L.

REV. 1 (2001); Albert W. Brodie, A Question of Enumerated Powers: Constitutional Issues Surrounding the

Federal Ownership of the Public Lands, 12 PAC. L.J. 693 (1981); Carolyn M. Landever, Whose Home on the

Range? Equal Footing, the New Federalism and State Jurisdiction on Public Lands, 47 FLA. L. REV. 557 (1995).

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746 EMORY LAW JOURNAL [Vol. 71:739

executive and congressional power under the Property Clause.

And while

scholars have examined Article IV as a whole, the most significant work has

focused on other topics besides the Property Clause, such as congressional

power to implement specific clauses in the Article.

Part I of this Article provides an overview of the Property Clause and the

disputes about executive and federal power under the Clause, using the specifics

of the fights over national monuments, federal fossil fuel leasing, preemption of

state law, and divestment of federal lands within states. Part II contains the heart

of the constitutional contributions of the piece: an overview of the historical

context of the Property Clause; an understanding of Article IV as a separate and

coherent component of the Constitution in ways that are meaningful for

constitutional interpretation; and an explanation of the need for residual

executive discretion to manage the day-to-day decisions of the public lands.

Part III applies the theory developed in Part II to the problems identified in

Part I. It identifies a key distinction between the revocation of national

monuments and the termination of future or current oil and gas leases—the

former allows for divestiture of interests in public lands while the latter does not.

That distinction is crucial because divestiture of federal ownership of lands is a

step that should require a clear congressional authorization for executive action

to occur—a principle long recognized as a matter of statutory interpretation by

the courts. The text of the Clause and the “horizontal federalism” nature of

Article IV provide a constitutional grounding for this statutory interpretation

principle. However, the need for executive management discretion is more

The placement of the Clause in Article IV has generally been mentioned only in passing while

discussing the Clause and its interpretation. See GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF

EMPIRE: TERRITORIAL EXPANSION AND AMERICAN LEGAL HISTORY 27–29 (2004) (rejecting an interpretation of

the Clause as the primary basis for congressional spending powers because of its placement in Article IV as

opposed to Article I); Lance F. Sorenson, The Hybrid Nature of the Property Clause: Implications for Judicial

Review of National Monument Reductions, 21 U. PA. J. CONST. L. 761, 781 (2019) (noting briefly the placement

of the Clause in Article IV as opposed to Article I as a basis for the argument that executive decisions under the

Clause should be shielded from judicial review); Robert L. Glicksman, Severability and the Realignment of the

Balance of Power over the Public Lands: The Federal Land Policy and Management Act of 1976 After the

Legislative Veto Decisions, 36 HASTINGS L.J. 1, 59 n.360 (1984) (noting and rejecting the argument that

placement of the Clause in Article IV might affect the constitutionality of legislative veto provisions for laws

enacted pursuant to the Clause). A few scholars have argued, without much detailed analysis, that the placement

of the Clause in Article IV supports divestiture of federal ownership of public lands within states. See Landever,

supra note 21, at 577; Brodie, supra note 21, at 719–21.

See generally Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 HARV. L. REV.

1468 (2007) (exploring congressional power under the Article); JOSEPH F. ZIMMERMAN, UNIFYING THE NATION:

ARTICLE IV OF THE UNITED STATES CONSTITUTION (2015) (providing an overview of the implementation of the

Article). For an example of scholarship that has focused on other sections of Article IV, see generally Ryan C.

Williams, The “Guarantee” Clause, 132 HARV. L. REV. 602 (2018).

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important when divestiture is not at stake, as in the context of terminating current

or future fossil fuel leasing.

Part III also applies the text of the Clause and the “horizontal federalism”

conception of Article IV to conclude that federal preemption of state law is

mandated by the text and structure of the Constitution. The Clause grants broad

authority to Congress in the text to enact laws that are preeminent over state law

under the Supremacy Clause of Article VI. The “horizontal federalism”

conception of Article IV supports a strong role as proprietor and sovereign for

the federal government with respect to its lands. Part III then shows that while a

“horizontal federalism” conception of Article IV might support a narrow version

of the equal footing doctrine, as developed by the Supreme Court in the

nineteenth and twentieth centuries, it cannot support a broad version of that

doctrine that would divest the federal government of ownership of public lands

within states, nor can it support its transformation into an “equal sovereignty”

doctrine that requires Congress to provide for uniformity with respect to states

outside the context of admitting states to the Union.

Part IV examines some possible extensions of the analysis in this Article to

other questions with respect to the Property Clause. A horizontal federalism

understanding of Article IV may support broader congressional power to

structure territorial governments or federal land agencies outside the constraints

of the Appointments Clause, for instance, or broader congressional power to

structure courts and manage dispute resolution in territories or with respect to

federal lands outside the constraints of Article III.

Finally, in the Conclusion, this Article notes how a horizontal federalism

understanding of Article IV may also have traction for a range of other issues

that relate to the rest of Article IV, such as the Guarantee Clause.

I. P

ROPERTY CLAUSE CONFLICTS

The federal government owns approximately 640 million acres of land

within the United States, or about thirty percent of the total land area of the

nation.

Those lands are managed by a diverse range of agencies, from the

Department of Defense (for military bases) to the U.S. Fish and Wildlife Service

(for national wildlife refuges); from the National Park Service to the U.S. Forest

Service and the Bureau of Land Management.

The public lands contain some

CONG. RSCH. SERV., supra note 12.

CAROL HARDY VINCENT, LAURA A. HANSON & CARLA N. ARGUETA, FEDERAL LAND OWNERSHIP:

OVERVIEW AND DATA 1 (2017).

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748 EMORY LAW JOURNAL [Vol. 71:739

of the most iconic landscapes and protected areas in the country; over many

decades, timber, minerals, and fossil fuels have been extracted from them; they

are used for recreation and grazing and conservation; and they include sites that

are important or even sacred for many Americans.

Those 640 million acres of public lands are in fact only a fraction of the total

amount of land that the federal government has owned since the founding of the

United States—the federal government at one point or another has owned land

that exceeds eighty percent of the total area of the country but sold or transferred

most of that land to private parties, corporations, or states over most of the

nineteenth century.

That great land transfer helped facilitate the settlement of

much of the United States by European Americans.

Transfers happened through grants to individuals—as in the Homestead Act,

where settlers who worked 160 acres of land for five years could obtain fee

simple ownership of that land.

There were also land grants to states upon

admission to the Union to support schools and other infrastructure objectives,

and land grants to corporations to subsidize the construction of railroads.

Transfers also happened through sale—much of the land transfers in the first

half of the nineteenth century were through sales of land through land offices

dispersed throughout the United States.

Transfers were often in the form of fee

simple ownership, but there were exceptions: the Stock-Raising Homestead Act

of 1916 allowed the grant of up to 640 acres of land chiefly valuable for grazing,

but the federal government retained ownership of the subsurface minerals of

granted lands.

And the General Mining Act of 1872 authorized the granting of

a limited property interest to miners who discovered valuable minerals on the

public lands, with the interest generally being restricted to the right to extract the

minerals from those lands and the possibility of eventual fee simple ownership.

The great extent of the public lands, their central role to the development of

the United States, and their great value—in economic and non-economic

terms—to the present and the future of the country make public lands a vital

political, legal, and policy topic. They are, for instance, at the center of the Biden

See CHRISTINE A. KLEIN, FEDERICO CHEEVER, BRET C. BIRDSONG, ALEXANDRA B. KLASS & ERIC

BIBER, NATURAL RESOURCES LAW: A PLACE-BASED BOOK OF PROBLEMS AND CASES 38–39 (4th ed. 2018).

The Homestead Act of 1862, Pub. L. No. 37-64, 12 Stat. 392.

See KLEIN ET AL., supra note 26, at 85.

See MALCOLM J. ROHRBOUGH, THE LAND OFFICE BUSINESS: THE SETTLEMENT AND ADMINISTRATION

OF AMERICAN LAND PUBLIC LANDS 1789-1837, at 233–34 (Wadsworth Publ’g Co. 1990) (1968).

Stock-Raising Homestead Act of 1916, Pub. L. No. 64-290, 39 Stat. 862.

General Mining Act of 1872, 30 U.S.C. § 26; see also JOHN D. LESHY, THE MINING LAW: A STUDY IN

PERPETUAL MOTION 35, 39–40 (1987) (providing an overview of the law).

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administration’s efforts to address climate change through restoration of

ecosystems and landscapes and the production of renewable energy.

The Property Clause is the most significant and relevant constitutional

provision for federal government power over the public lands. And interpreting

the Property Clause has been at the heart of a series of controversial and difficult

questions about that federal power over the public lands—whether it is

determining which branch of the federal government has primacy in managing

those lands, understanding the proper scope of federal power over those lands

vis-à-vis states, or even recognizing the basis for federal ownership of those

lands.

This Part surveys three key disputes over the Property Clause. Part I.A

provides an overview of the disputes over executive versus congressional power

in the context of the Property Clause. Part I.B describes the conflict over whether

federal law, pursuant to the Clause, preempts state law. And Part I.C introduces

the equal footing doctrine and arguments based on that doctrine that extensive

federal land ownership within states is unconstitutional.

A. Executive Versus Congressional Power

A constant question in public lands law concerns the power of the President

to interpret and administer laws enacted by Congress. This is necessarily an

inter-branch dispute because a broad executive power to interpret (or arguably,

at the extreme, disregard) congressional legislation increases executive power at

the expense of Congress. Reciprocally, constraining executive power to interpret

or implement public lands laws would empower Congress, as the President

would need to return to Congress for additional authority when faced with

ambiguity or uncertainty as to executive power.

Conflicts over the scope of executive power to interpret and administer

public land statutes extend back to the early days of the United States—for

instance, a high-stakes conflict between President Andrew Jackson and

Congress involved whether the President could unilaterally determine if the

federal government would accept only gold or silver in payment for sales of

federal lands to the public.

In the late-nineteenth and early-twentieth centuries,

there were prominent debates and litigation over whether presidents had the

See Exec. Order No. 14,008, 86 Fed. Reg. 7,619 (Jan. 27, 2021) (aiming at “[t]ackling the [c]limate

[c]risis at [h]ome and [a]broad”).

See infra notes 160–66 and accompanying text.

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power to protect public lands from privatization by withdrawing them from

disposal statutes.

Today, these debates focus on the extent to which public lands should be

protected from large-scale industrial development, such as mining or oil and gas

extraction. Since the early twentieth century, presidents have had the power to

designate national monuments pursuant to the Antiquities Act. Under the Act,

the President is authorized to do the following:

[T]he President of the United States is hereby authorized, in his

discretion, to declare by public proclamation historic landmarks,

historic and prehistoric structures, and other objects of historic or

scientific interest that are situated upon the lands owned or controlled

by the Government of the United States to be national monuments, and

may reserve as a part thereof parcels of land, the limits of which in all

cases shall be confined to the smallest area compatible with the proper

care and management of the objects to be protected.

Since President Theodore Roosevelt, during whose administration the Act was

passed, many presidents have used the Antiquities Act to set aside large areas of

land from development. President Theodore Roosevelt protected the Grand

Canyon; President Franklin Roosevelt protected areas adjoining Grand Teton

National Park; President Carter protected large swaths of Alaska; President

Clinton protected red rock deserts in southwestern Utah; and President Obama

protected additional areas of Utah, including the Bears Ears National

Monument, proclaimed in late 2016.

The current controversy entails efforts by the Trump administration to

unilaterally eliminate or substantially shrink national monument designations by

past administrations—most significantly, those of the Bears Ears National

Monument in Utah by the Obama administration and the Grand Staircase-

Escalante National Monument in Utah by the Clinton administration.

The

language of the Antiquities Act does not explicitly empower the President to

undo designations of monuments. While there are past examples of executive

changes to previously designated monuments, only one approaches the scope of

the Trump administration’s changes, and none of the previous changes were

See infra Part III.A.

Antiquities Act of 1906, Pub. L. No. 59-209, 34 Stat. 225.

See KLEIN ET AL., supra note 26, at 584–88.

See John C. Ruple, The Trump Administration and Lessons Not Learned from Prior National

Monument Modifications, 43 HARV. ENV’T L. REV. 1, 3 (2019); Mark Squillace, Eric Biber, Nicholas S. Bryner

& Sean B. Hecht, Presidents Lack the Authority to Abolish or Diminish National Monuments, 103 VA. L. REV.

ONLINE 55, 55 n.2 (2017).

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challenged in court.

Scholarly defenders of the Trump administration argued

that the ability to undo the actions of past presidents is an inherent component

of executive power and should be read into the statutes even if not explicitly

granted to the President in the text of the statute—these defenders accordingly

developed a broad narrative of executive power in the context of public lands.

Critics took a narrower vision of presidential power, emphasizing the textual

grant of power to Congress under the Property Clause.

The positions, however, will likely be reversed under the Biden

administration when it comes to the development of federal public lands for

fossil fuel extraction. Pursuant to statute, the Executive Branch can lease areas

of federal public lands for coal, oil, and gas production—to date over thirteen

million acres are leased, producing a substantial fraction of the total fossil fuel

production in the United States.

Fossil fuel production from federal public

lands is significant from a climate change perspective, ultimately contributing

about one-quarter of all greenhouse gas emissions in the country.

As with the Antiquities Act, the Executive Branch is given broad discretion

about whether and which lands to lease for fossil fuel development. There are

provisions that allow for the termination of leases for violation of lease terms

and other causes—in addition, like the Antiquities Act, the statute neither

explicitly authorizes nor prohibits unilateral executive termination of existing

leases without cause.

Environmental advocates have long urged the United States to cease leasing

new areas for fossil fuel leasing, contending that the Executive’s broad

discretion to decide whether and which lands to lease enables a president to also

refuse to lease any lands.

These advocates contend this step is necessary

because of the need both to protect public lands from the localized negative

impacts of development and to restrict greenhouse gas emissions that contribute

See Ruple, supra note 37, at 3–4. Several of these reductions involved military operations or the need

for resources for military operations during war, and therefore might be understood as based on presidential war

powers. Jedediah Britton-Purdy, Whose Lands? Which Public? The Shape of Public-Lands Law and Trump’s

National Monument Proclamations, 45 ECOLOGY L.Q. 921, 939 n.76, 953 (2018).

See Yoo & Gaziano, supra note 21, at 639–40.

See, e.g., Squillace et al., supra note 37, at 56.

See BUREAU OF LAND MGMT., LAND STATISTICS 2019, at 84–85 tbl.3-12, 86–93 tbl.3-13 (2020)

(providing statistics for oil and gas leases); Eric Biber & Jordan Diamond, Keeping it All in the Ground?, 63

ARIZ. L. REV. 279, 282 (2021) (noting federal leases produce twenty-four percent of oil production, thirteen

percent of natural gas, and forty-three percent of coal in the United States).

See Biber & Diamond, supra note 41.

Id.

Id. at 280.

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to climate change.

Opponents contend that the language and the purpose of the

statute mandate the development of federal lands for fossil fuels and a minimum

level of leasing and development.

One can go even further, however, in

restricting fossil fuel development on federal lands by terminating existing

leases on a piecemeal or wholesale basis.

Debates over executive power under the Property Clause come and go in

significant part because of the importance of statutes granting broad discretion

to the Executive under the Clause. For instance, the Mineral Leasing Act, which

sets up the system for leasing federal lands for oil and gas development,

authorizes the Secretary of the Interior “to do any and all things necessary to

carry out and accomplish the purposes of this chapter.”

Likewise, the language

of the Antiquities Act allows broad discretion as to what kinds of resources

qualify lands for designation as national monuments—so broad that courts have

mostly refused to second-guess presidential proclamations of monuments.

Accordingly, these debates over executive power will recur and persist beyond

the current debates over national monuments and fossil fuel leasing. And the

application of congressional statutes to millions of acres of land and thousands

of individual management actions also necessarily means that the Executive has

discretion to interpret and apply even relatively clear and specific laws.

B. Preemption

Another key constitutional debate over the Property Clause has been the

extent to which legislative powers exercised by Congress pursuant to the Clause

preempt state law. The Supreme Court definitively stated in 1976 that

Id.

See Wyoming v. U.S. Dep’t of Interior, 493 F. Supp. 3d 1046, 1062, 1086 (D. Wyo. 2020) (holding

that regulations restricting methane emissions from oil and gas exceeded the scope of agency authority in part

because it exceeded the power of the Bureau of Land Management under the Mineral Leasing Act (MLA), which

is “to promote the orderly development of oil and gas deposits” (quoting Geosearch, Inc. v. Andrus, 508 F. Supp.

839, 842 (D. Wyo. 1981))); see also Harvey v. Udall, 384 F.2d 883, 885 (10th Cir. 1967) (stating that the purpose

of the MLA, which structures leasing of federal lands for oil and gas development, is “to promote the orderly

development of the oil and gas deposits in the publicly owned lands of the United States through private

enterprise” (citation omitted)); Conway v. Watt, 717 F.2d 512, 514 (10th Cir. 1983) (“The purpose behind [the

MLA] was . . . [the] development of the nation as a whole.”); Cal. Co. v. Udall, 296 F.2d 384, 388 (D.C. Cir.

1961) (“The Act was intended to promote wise development of these natural resources and to obtain for the

public a reasonable financial return on assets that ‘belong’ to the public.”).

See Biber & Diamond, supra note 41, at 283.

Mineral Leasing Act of 1920, 30 U.S.C. § 189.

See, e.g., Wyoming v. Franke, 58 F. Supp. 890, 892 (D. Wyo. 1945) (dismissing request to void

presidential proclamation). A recent opinion by Chief Justice Roberts questioned broad presidential authority to

designate national monuments. See infra note 162.

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congressional acts under the Clause have preemptive authority.

Such an

argument has a strong grounding in the text of the Constitution, as acts of

Congress are “Laws” pursuant to the Supremacy Clause of Article VI.

Nonetheless, a range of commentators continues to argue against preemption

or for significantly limited preemption pursuant to the Clause.

These

arguments often draw on claims that Property Clause powers are “proprietary”

in nature, and therefore do not warrant full preemptive powers.

Alternatively,

they draw on arguments that the text of the Clause grants Congress only the

power either to “dispose” of its lands or to enact “needful” rules and regulations

that implement other congressional powers under the Constitution, such that

there is not a standalone congressional power under the Clause that can support

preemption.

Most recently, one scholar has drawn on the history of

congressional debates over the Clause to oppose preemption.

C. Divestiture of Federal Lands Under the Equal Footing Doctrine

The most fundamental constitutional debate over the Property Clause is the

extent to which the federal government should even have ownership and control

over lands within the borders of states. The argument, in its most basic form, is

that once a state is admitted to the Union, it must enter on equal footing with

existing states. That in return requires the federal government to transfer

ownership of its remaining lands within newly admitted states—either to private

entities or to the state—to ensure that the newly admitted state enters on equal

footing.

In particular, equality is required with the original thirteen states, none

of which would have originally had federal lands within their borders, except for

limited pieces of property needed for federal buildings, military bases, and

similar facilities.

The argument has been in the political and legal discourse since the 1830s.

Dicta in a Supreme Court case from the 1840s, Pollard v. Hagan, supports the

claim.

That opinion became the basis for the equal footing doctrine, which the

Kleppe v. New Mexico, 426 U.S. 529, 543 (1976); see also Cal. Coastal Comm’n v. Granite Rock Co.,

480 U.S. 572, 580–81 (1987) (applying preemption under the Clause).

Appel, supra note 21, at 10.

See, e.g., Engdahl, supra note 21, at 304; Schmitt, Limiting the Property Clause, supra note 21, at 148.

See, e.g., Engdahl, supra note 21, at 304, 308–10.

Natelson, supra note 21, at 350, 363–65; Brodie, supra note 21, at 710–11.

Schmitt, Limiting the Property Clause, supra note 21, at 154–55.

Louis Touton, The Property Power, Federalism, and the Equal Footing Doctrine, 80 COLUM. L. REV.

817, 833 (1980).

Id.

44 U.S. (3 How.) 212, 216 (1845).

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Supreme Court has adopted and applied to a range of contexts.

But the

Supreme Court has never applied the equal footing doctrine to question federal

land ownership within states since Pollard, and federal courts have repeatedly

and uniformly upheld federal land ownership against equal footing challenges.

That lack of legal success has not stopped the doctrine from being adopted

by a range of political actors on a regular basis. In the 1950s, 1970s, 1990s, and

2010s, there were calls for divestment of some or all federal public domain to

states, local governments, or private entities—calls that were on occasion

associated with violence against federal land managers.

In the late 2010s, Utah

even appropriated millions of dollars to support a lawsuit challenging federal

ownership of lands within the state.

The Supreme Court has most frequently applied the equal footing doctrine

in two contexts. First, the Court has held that ownership of lands submerged

beneath navigable waters at the time a state is admitted to the Union transfers

automatically to the newly admitted state.

Second, the Court has drawn on the

doctrine in interpreting and understanding the scope of the laws admitting states

to the Union. In particular, the Court has relied on the doctrine to strike down or

narrowly interpret a range of provisions in admissions statutes that imposed

conditions on states as part of their admission. For instance, the Court struck

down a condition in Oklahoma’s admission act that required it to keep its state

capital in a specific city for a period of time.

The Court argued that Congress

could not use its power to admit states under Article IV, Section 3 to impose

fundamental political inequality on a state relative to other states.

A state’s

choice of the location of its state capital, the Court held, was a core example of

political sovereignty that Congress could not diminish.

See, e.g., Coyle v. Smith, 221 U.S. 559, 575–77 (1911).

See Arizona v. California, 373 U.S. 546, 597–98 (1963); Scott v. Lattig, 227 U.S. 229, 244 (1913);

Texas v. Louisiana, 410 U.S. 702, 713 (1973); United States v. Gardner, 107 F.3d 1314, 1317–18 (9th Cir. 1997);

see also infra note 202 and accompanying text (noting that the case law has not been applied to terrestrial land

ownership).

See supra notes 8–9 and accompanying text.

See Hummel, supra note 8; Nick Lawton, Utah’s Transfer of Public Lands Act: Demanding a Gift of

Federal Lands, 16 VT. J. ENV’T L. 1, 16 (2014).

See Pollard, 44 U.S. at 229.

Coyle, 221 U.S. at 574.

Id.

Coyle, 221 U.S. at 565 (“The power to locate its own seat of government, and to determine when and

how it shall be changed from one place to another, and to appropriate its own public funds for that purpose, are

essentially and peculiarly state powers.”).

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In the 2010s, the Court significantly extended this equal footing doctrine by

identifying an “equal sovereignty” doctrine that may limit Congress’s ability to

impose unequal burdens on existing states outside the context of admitting

states.

The Court relied on this principle to strike down a provision of the

Voting Rights Act that required specific states to have changes in their voting

rules pre-cleared by the federal government.

* * *

All three of these sets of arguments—about (1) executive power under the

Clause, (2) the preemptive power of federal law under the Clause, and (3) the

federal government’s power to retain ownership of lands within admitted

states—depend on a proper understanding of the role that the Clause plays in the

Constitution’s overall structure. Understanding that role in turn requires placing

the Property Clause within historical context and within the broader structure of

Article IV.

II. U

NDERSTANDING THE PROPERTY CLAUSE IN CONTEXT

The Property Clause explicitly grants Congress the “Power to dispose of and

make all needful Rules and Regulations respecting the Territory or other

Property belonging to the United States.”

A simple textualist argument would

assert that this gives Congress primacy in determining how to manage federal

lands, and it would argue against broad executive power in interpreting and

applying relevant statutes. Likewise, congressional actions pursuant to the

Clause are “laws” that qualify for preemptive power over the states under the

Supremacy Clause of Article VI. Any arguments against preemptive power or

for executive power, therefore, must be structural or based on history or a claim

about the purpose of the Clause. However, as this Part shows, any structural or

historical arguments generally cut against state supremacy or strong executive

power in the Property Clause context. There is one important exception,

developed at the end of this Part—the structural necessity for some residual

executive power to fill in gaps in congressional statutes where relevant for

pressing decisions to protect or manage the public lands. As for historical

Shelby County v. Holder, 570 U.S. 529, 535 (2013).

Id. at 544.

U.S. CONST. art. IV, § 3. The Property Clause has been the basis for congressional power over both

federal territories and federal lands within admitted states. The focus of this Article is on the application of the

Clause in the public lands context; but, where relevant, I will draw on the territorial context. Part IV notes how

the analysis developed in this Article might have relevance in the territorial context as well.

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practice, Part III develops that in more detail, exploring the application of the

principles developed in this Part to the specific problems introduced in Part I.

Part II.A begins with an overview of the historical context, examining how

the Clause was a key component of resolving disputes among the original

thirteen states as to claims in the West of the new nation. This context clarifies

how the Property Clause is closely tied to interstate relations and horizontal

federalism, and thus can inform two types of arguments: (1) congressional power

arguments under the Clause to preempt state law, and (2) equal footing

arguments about the constitutionality of federal land ownership. Part II.B

explains how an understanding of Article IV as a coherent component of the

Constitution that advances horizontal federalism—rather than a grab-bag of

miscellaneous provisions—provides structural arguments for congressional

primacy in administering the Clause. Finally, Part II.C describes how, despite

congressional primacy, there is also an inherent need for some level of executive

discretion in the day-to-day management of public lands.

A. The Resolution of State Western Land Claim Disputes

The Property Clause’s location in Section 3 means that it is co-located with

the Admissions Clause, the source of the federal government’s power to create

new states.

That co-location is not accidental—indeed, it is central to

understanding the historical context of the Property Clause. The Property Clause

was added to the Constitution as part of an overall resolution of disputes between

the original thirteen states over claims to lands west of the Appalachians—

disputes that were at the center of the politics of the Articles of Confederation

and the drafting of the Constitution. That historical context is important because

it explains the connection between the Property Clause and a broader

understanding of Article IV as oriented towards horizontal federalism.

After the American Revolution, the newly independent states were faced

with overlapping and conflicting claims to western lands, without the possibility

of arbitration by the British government.

Several states had no western land

Id.

See PETER S. ONUF, THE ORIGINS OF THE FEDERAL REPUBLIC: JURISDICTIONAL CONTROVERSIES IN THE

UNITED STATES 1775–1787, at 8–9, 45–51 (1983) [hereinafter ONUF, ORIGINS]; DAVID C. HENDRICKSON, PEACE

PACT: THE LOST WORLD OF THE AMERICAN FOUNDING 10, 120–21 (2003); Metzger, supra note 23, at 1497–98;

THE FEDERALIST NO. 7, at 60–61 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (noting risks of conflicts

over western land claims); Fletcher v. Peck, 10 U.S. 87, 142 (1810) (Marshall, C.J.) (stating that resolution of

western land claims “was a momentous question which . . . threatened to shake the American confederacy to its

foundation. This important and dangerous contest has been compromised, and the compromise is not now to be

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claims and strongly argued that those western land claims should benefit all

states, since all states had fought for independence from the British.

Maryland

felt so strongly about the importance of western land claims that it refused to

ratify the Articles of Confederation for several years because the Articles did not

address the issue.

In part, because of these disputes, New York and Virginia

both offered to cede their claims to the Confederation Congress in return for

specific conditions—most importantly, that the western lands would be set up

as new states once settled by European-Americans.

This condition was based

on a concern that otherwise western lands might permanently be held in a

position of political subordination or that they would be part of large, unwieldy

states that would be ungovernable as republics and vulnerable to secessionist

movements in the West.

Accordingly, the Northwest Ordinance of 1787, which

was the compromise reached by the Confederation Congress to facilitate the

transfer of the ceded land claims by Virginia and other states to the United

States, provided for the admission of new states when population thresholds had

been met.

disturbed”); JOSEPH STORY, 1 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 214–16 (1833)

(noting the importance of these conflicts); Peter S. Onuf, Territories and Statehood, in 1 ENCYCLOPEDIA OF

AMERICAN POLITICAL HISTORY 1283, 1286 (Jack P. Greene ed., 1984) [hereinafter Onuf, Territories and

Statehood] (stating western land claims were “critical to the very survival of the states” and “a chronic source

of conflict among the United States and thus jeopardized cooperation in the war effort”); Edwards v. Carter, 580

F.2d 1055, 1059 (D.C. Cir. 1978) (per curiam); JOHN D. LESHY, OUR COMMON GROUND: A HISTORY OF

AMERICA’S PUBLIC LANDS (forthcoming 2022). Conflict over these western land claims was significant enough

to prevent adoption of a proposed provision in the Articles that would have provided a guarantee by the United

States of state borders precisely because those borders were contested between the states. Williams, supra note

23, at 636–37.

See HENDRICKSON, supra note 71, at 135, 138–41; LESHY, supra note 71, at 6–7; Luther Martin,

Genuine Information XI, BALT. MD. GAZETTE, Feb. 5, 1788, reprinted in 16 THE DOCUMENTARY HISTORY OF

THE RATIFICATION OF THE CONSTITUTION 39, 39–42 (John P. Kaminski & Gaspare J. Saladino eds., 1986).

See HENDRICKSON, supra note 71, at 148, 150; STORY, supra note 71, at 215. Other landless states also

delayed their ratification of the Articles on similar grounds. See Williams, supra note 23, at 639; ONUF, ORIGINS,

supra note 71, at 13 (“Ratification of the Articles without prior boundary negotiations would fix the existing

unequal distribution of territory among the states. ‘It would not be safe’ for the small states to confirm the large,

landed states (particularly Virginia) in their extensive charter claims, said Samuel Chase of Maryland.”).

See ONUF, ORIGINS, supra note 71, at 14–17; Williams, supra note 23, at 639–40.

Eric Biber, The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States

Entering the Union, 46 AM. J. LEGAL HIST. 119, 132–35 (2004).

An Ordinance for the Government of the Territory of the United States North West of the River Ohio,

in 32 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 334, 342 (Roscoe R. Hill ed., 1936) (1787);

PETER S. ONUF, STATEHOOD AND UNION, at xviii–xxi (1987). Congress did not consider itself bound by this

provision in future admission decisions and did not, in fact, automatically grant admission once the population

threshold had been met. See Biber, supra note 75, at 126 n.19, 127.

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Thus, the establishment of new states was a key component of the resolution

of land claim disputes.

In addition, states without western land claims (so-

called “landless” states) and small states generally feared that without splitting

off the western land claims of the large states, the small states would eventually

be dominated by the large states.

Some small state delegates argued in the

Convention and in ratification that Congress should have the power to

unilaterally split states into smaller units to provide greater equity.

Those

arguments failed

—the Admission Clause has explicit language requiring the

consent of a state for its division

—but they show how the admission of new

states was intimately connected with the interrelationship of the existing states.

See Williams, supra note 23, at 628 (noting that the Admissions and Property Clauses “addressed one

of the most significant sources of rivalry between the states at the time of the Constitution’s formation—namely,

rivalrous claims to sovereignty over western lands”).

See ONUF, ORIGINS, supra note 71, at 3–4, 151; Onuf, Territories and Statehood, supra note 71, at

1286 (noting the “imbalance” between landed and landless states “was a continuing source of friction, subverting

the equality of the states, the fundamental principle of union on which the Articles of Confederation were

grounded”). Ryan C. Williams noted the following:

The landless states, wary of entering into a political union with states whose boundaries would

dwarf their own, insisted that title and jurisdiction to the western lands should be held in collective

trust by the Confederation government and used as a public fund to repay debts incurred during

the Revolution. The landed states insisted on the validity of their extensive territorial claims.

Williams, supra note 23, at 636–37.

See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 461–62 (Max Farrand ed., 1911)

[hereinafter 2 FARRAND’S RECORDS] (presenting how Carrol, a Maryland delegate, sought to eliminate language

that required the consent of a state for its division, partly on concerns about landed states monopolizing the

western lands); id. at 463–64 (presenting similar objections to another Maryland delegate, Luther Martin, who

“urged the unreasonableness of forcing & guaranteeing the people of Virginia beyond the Mountains, the

Western people, of N. Carolina. [sic] & of Georgia, & the people of Maine, to continue under the States now

governing them, without the consent of those States to their separation” and threatened that the small landless

states might leave the Convention if consent by states for splitting was required); Luther Martin, The Genuine

Information, Speech to Legislature of Maryland in Opposition to the Constitution (Nov. 29, 1787), reprinted in

3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 172, 224–27 (Max Farrand ed., 1911) [hereinafter 3

FARRAND’S RECORDS].

See 2 FARRAND’S RECORDS, supra note 79, at 464.

See Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 CALIF. L. REV.

291, 332–95 (2002) (conducting a thorough analysis of the history and text of the provision).

Roger M. Sullivan, Jr., The Power of Congress Under the Property Clause: A Potential Check on the

Effect of the Chadha Decision on Public Land Legislation, 6 PUB. LAND L. REV. 65, 82 (1985) (explaining the

jealousy over new western states potentially dominating existing states and how “this concern ultimately had a

direct impact on the new states clause as well as a significant, though more subtle, impact on the property

clause”). The contemporary importance of the consent requirement for merger and splitting of existing states is

shown by the fact that those provisions received some of the greatest attention of the provisions in Article IV in

the Convention and ratification debates. See THE FEDERALIST NO. 43, at 273–74 (James Madison) (Clinton

Rossiter ed., 1961) (noting the importance of providing for the admission of new states but focusing primarily

on protections against creating new states from existing ones or merging states). The Clause received particular

attention in ratification debates in Virginia and Massachusetts because of the possibility of splitting off Kentucky

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Granting Congress the power to admit new states also raised the question of

whether new states would be put on an equal footing with the existing states.

There was sharp division over this in the Convention. Some delegates expressed

concerns that western states would eventually dominate the eastern states, and

accordingly proposed that any new western states should be granted subordinate

status relative to the eastern states.

Many other delegates argued for equal

treatment of new states, both on the grounds that such equality was normatively

desirable and that otherwise westerners might secede or ally with foreign

powers.

Explicit language requiring admission of new states on an “equal

footing” was rejected by the Convention, leaving broad plenary power in

Congress.

This history of the Admissions Clause as an effort to resolve interstate

disputes over the western land claims directly connects to the Property Clause.

While a key component of resolving the disputes over western land claims

required the transfer of those claims from states to the United States, the Articles

of Confederation provided no method for managing the lands ceded to the

United States.

The Property Clause was developed to facilitate the solution to

and Maine, respectively, as separate states. See, e.g., Pa. Herald, 9 February, as reprinted in RATIFICATION BY

THE STATES: MASSACHUSETTS 884–85, in 5 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE

CONSTITUTION (John P. Kaminski et al. eds., 1998) (reporting on the importance of this provision for Maine

delegates to the Massachusetts constitutional convention); Letter from John Brown (June 7, 1788), reprinted in

11 THE PAPERS OF JAMES MADISON 88, 89 (Robert A. Rutland et al. eds., 1977) (reporting on the importance for

Kentucky to be able to form a separate state).

See, e.g., 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 533–34 (Max Farrand ed., 1911)

[hereinafter 1 FARRAND’S RECORDS] (recording Governour Morris, a Convention delegate from New York,

proposing to fix representation in the House of Representatives to ensure that existing states always had more

votes than any new states); id. at 559–60 (recording Gorham proposing that western state representation be

adjusted to ensure eastern states retain control); 2 FARRAND’S RECORDS, supra note 79, at 2–3 (recording Gerry

making a similar proposal); 1 FARRAND’S RECORDS, supra, at 541 (recording King’s concern that western states

with small populations will get disproportionate representation in Congress).

See, e.g., 1 FARRAND’S RECORDS, supra note 83, at 578–79 (depicting George Mason supporting equal

representation for western states); id. at 584–85 (depicting Madison taking the same position); JACK N. RAKOVE,

ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 72–73 (1996);

HENDRICKSON, supra note 71, at 239–40. The debate over new state equality had a sectional valence, as the

expectation at the time of the Convention and ratification debates was that most new states would be southern

in orientation; southern delegates accordingly supported equality of new states and broad powers to admit new

states in Congress. HENDRICKSON, supra note 71, at 227–28, 237.

See 2 FARRAND’S RECORDS, supra note 79, at 454, 457–58, 464 (showing equal footing language was

dropped on the motion of Morris, with no explanation as to why); see also Metzger, supra note 23, at 1499

(noting that the equal footing language was intentionally omitted at the Convention).

The Articles also did not provide a generic provision authorizing Congress to admit new states but

instead only included specific language that addressed how Canada might join the Union. This left open the

question of whether Congress could admit other new states under the Articles or manage the lands ceded to the

United States. See THE FEDERALIST No. 43, at 270 (James Madison) (Clinton Rossiter ed., 1961). See generally

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interstate conflict: by providing a constitutional basis for governance of the

public lands, it transferred the source of interstate conflict (the western lands) to

the United States, which would manage it on behalf of all the states.

The

connection of the provision to the interstate conflict over land claims is made

clear by the inclusion of a disclaimer in the second part of the Property Clause

that the Constitution did not “Prejudice any Claims of the United States, or of

any particular State.”

This historical context shows that giving Congress the power to manage the

federal public lands was a central part of resolving a dispute among the states as

to who should control the western lands. Granting the federal legislature—

Congress—power in the Property Clause advanced the growth and development

of the federal government and thus, in part, advanced vertical federalism.

However, the Clause was also crucial in advancing inter-state relationships by

resolving inter-state disputes over western land claims, and thus advanced

horizontal federalism as well.

B. A Horizontal Federalism Model for Article IV

Complementing this historical context for the Property Clause is the location

of the Clause in Article IV. That location gives weight to the historical context,

helping explain how the Clause fits within the Article and the Constitution as a

whole. The Article’s focus on state-to-state relationships—horizontal

federalism—supports an understanding of general primacy of congressional

power in the context of the provisions of Article IV.

LESHY, supra note 71, at 14–27 (explaining the shortcomings of the Articles in its dealing with western lands

and how the constitutional convention delt with the issue through the Property Clause). The drafters of the

Articles had left out language giving the United States authority over western lands because of the controversy

between landless and landed states. HENDRICKSON, supra note 71, at 132–33, 146. The framers of the

Constitution were aware of and sought to rectify this lack of authority for the United States under the Articles.

1 FARRAND’S RECORDS, supra note 83, at 28 (depicting Governor Randolph noting the need to provide for

admission of new states in the Constitution); PAUL W. GATES, HISTORY OF PUBLIC LAND LAW DEVELOPMENT

73 (1968) (“The problems posed by the existence of the western lands, the formation of new states, and the

questionable legality of acts of the Congress of the Confederation concerning the public lands were of utmost

importance to many of the delegates of the Constitutional Convention.”); Sullivan, supra note 82, at 79–80.

Glicksman, supra note 22, at 59–60 n.360 (noting the Property Clause’s location “in article IV probably

reflects the Framers’ focus in enacting article IV, section 3 on the admission of new states to the union and on

the resolution of the conflicting claims of the federal and state governments to the territories,” which explains

why the Clause was “placed in article IV, which deals with relations among the states and between the states

and the federal government, rather than in article I, which deals with legislative powers” (citations omitted)).

Alexander Hamilton noted the risk of conflicting western claims for the stability of the Union and thus the need

for federal control. THE FEDERALIST NO. 7, at 60–61 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see

also KLEIN ET AL., supra note 26, at 41 (noting this connection).

U.S. CONST. art. IV, § 3, cl. 2.

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On its face, Article IV is primarily concerned with state-to-state relations.

The first Section requires states to give “Full Faith and Credit” to the “public

Acts, Records, and judicial Proceedings of every other state.”

The first Clause

of the second Section requires that citizens of a state “shall be entitled to all

Privileges and Immunities of the Citizens in the several States.”

The second

Section also requires states to extradite to other states’ fugitives from justice and

to return fugitive slaves.

The third Section allows Congress to admit new

states, creates a process for the merging or division of existing states, and

authorizes Congress to “dispose of and make all needful Rules and Regulations

respecting the Territory or other Property belonging to the United States.”

The

fourth Section provides that “[t]he United States shall guarantee to every State

in this Union a Republican Form of Government” and will protect states against

invasion and “domestic Violence.”

The various provisions in the Article were combined into a single article by

the Committee on Style at the end of the Constitutional Convention.

The

Supreme Court has stated that the Committee on Style’s edits to the

constitutional text should not be given great weight in interpreting the meaning

of the Constitution because the Committee was not authorized to make

substantive changes to the text.

But even earlier drafts of the Constitution

separated out the provisions of what is now Article IV into a series of Articles

located together at the end of the Constitution.

The notes from the Committee

of Detail as to the initial draft of the entire Constitution presented to the full

Convention described the structure as “treat[ing] of the legislative, judiciary and

executive in their order, and afterwards, of the miscellaneous subjects, as they

occur, bringing together all the resolutions, belonging to the same point,

howsoever they may be scattered about and leaving to the last the steps

necessary to introduce the government.”

Those miscellaneous provisions

included the Admission Clause and the Guarantee Clause.

This drafting history

Id. § 1.

Id. § 2, cl. 1.

Id. § 2, cls. 2–3. The third Clause was effectively repealed by the adoption of the Thirteenth

Amendment abolishing slavery. Id. amend XIII, § 1.

Id. art. IV, § 3.

Id. § 4.

2 FARRAND’S RECORDS, supra note 79, at 601–02.

See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 792 n.8 (1995) (noting the Committee on

Style was appointed to merely arrange the agreed upon articles).

2 FARRAND’S RECORDS, supra note 79, at 187–88.

Id. at 138 (emphasis omitted).

Id. at 147–48.

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lends additional support to an interpretation that focuses on the separate identity

of Article IV.

In contrast to the first three articles of the Constitution, Article IV only has

limited provisions with respect to the powers of the federal government:

Congress is authorized to implement Section 1 on full faith and credit;

under

Section 3, Congress can admit new states and manage the property and territories

of the United States,

100

and the United States will guarantee the republican

nature of the states.

101

Indeed, the Article has no mention whatsoever of the other

two of the three branches of the federal government: the President or the

Judiciary.

Article IV thus stands out from the rest of the Constitution, particularly the

first three articles, in its focus on state-to-state relations rather than on the powers

and limits of the federal government. Courts and commentators have noted these

unique features of Article IV, identifying Article IV as a “states” Article of the

Constitution focused on comity between the states.

102

Friendly state-to-state

relationships are of obvious importance in any sustained political relationship

between those states, whether that political relationship is more confederal (as

under the Articles of Confederation) or federal. So, it is perhaps not surprising

that many of the provisions in Article IV are very similar to provisions of the

Articles of Confederation, in that the relationships between states was the

component of the Articles that was least different from the Constitution.

103

U.S. CONST. art. IV, § 1.

100

Id. § 3.

101

Id. § 4.

102

See, e.g., Austin v. New Hampshire, 420 U.S. 656, 661 (1975) (calling Article IV the “comity article”);

Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 379 (1978) (calling Article IV the “so-called States’

Relations Article”); Brainerd Currie, The Constitution and the Choice of Law: Governmental Interests and the

Judicial Function, 26 U. CHI. L. REV. 9, 14 (1958) (stating that Article IV relates to “the comity of nations” and

“interstate conflicts”); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws,

104 YALE L.J. 541, 566 (1994) (calling Article IV the “states” article).

103

Both the Full Faith and Credit provision and the Privileges and Immunities provision borrowed heavily

from the Articles. Compare U.S. CONST. art. IV, § 1 (the Constitution’s Full Faith and Credit provision), with

ARTICLES OF CONFEDERATION of 1781, art. IV, para. 3 (the Articles of Confederation’s Full Faith and Credit

provision); compare U.S. CONST. art. IV, § 2, cl. 1 (the Constitution’s Privileges and Immunities provision),

with ARTICLES OF CONFEDERATION of 1781, art. IV, para. 1 (the Articles of Confederation’s Privileges and

Immunities provision). For discussion on the ratification debates, see generally CHARLES PINCKNEY,

OBSERVATIONS ON THE PLAN OF GOVERNMENT SUBMITTED TO THE FEDERAL CONVENTION (1787) (Pinckney, a

delegate from South Carolina, noting how many Article IV provisions were based on the Articles). For courts

and commentators noting the similarities between the Full Faith and Credit provisions of the Constitution and

Articles of Confederation, see Kurt H. Nadelmann, Full Faith and Credit to Judgments and Public Acts: A

Historical-Analytical Reappraisal, 56 MICH. L. REV. 33, 54 (1957); Charles M. Yablon, Madison’s Full Faith

and Credit: A Historical Analysis, 33 CARDOZO L. REV. 125, 144 (2011); Daniel A. Crane, The Original

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2022] THE PROPERTY CLAUSE 763

contrast, the Constitution structured the federal government of the United States

in a way very different from the Articles—in fact, one of the key purposes of

developing the Constitution was to replace the state-to-state treaty system of the

Articles, in which the Union had to act through the individual states, with a

system in which the federal government could operate independently of the

states with respect to revenue and regulation.

104

The distinction between the material in Articles I, II, III, and IV of the

Constitution can be understood as the distinction between vertical and horizontal

federalism, with Articles I through III focused on creating the institutional

infrastructure necessary for vertical federalism—the federal government—while

Article IV focused on creating the institutional infrastructure of horizontal

federalism—relationships between the states.

105

Given this focus on horizontal

federalism, a number of scholars have drawn connections between Article IV

and international law, with Article IV serving more as a guide to ensuring

Understanding of the “Effects Clause” of Article IV, Section 1 and Implications for the Defense of Marriage

Act, 6 GEO. MASON L. REV. 307, 330–31 (1998). Some courts and commentators also note the similarities

between the Privileges and Immunities provisions. See Austin, 420 U.S. at 661 n.6; United States v. Harris, 106

U.S. 629, 643–44 (1883); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 359

(1998); David S. Bogen, The Privileges and Immunities Clause of Article IV, 37 CASE W. RSRV. L. REV. 794,

795 (1987); Chester James Antieau, Paul’s Perverted Privileges or the True Meaning of the Privileges and

Immunities Clause of Article Four, 9 WM. & MARY L. REV. 1, 3 (1967). The similarities are likely one reason

Article IV was not a focus of discussion at the Convention or in the ratification debates. See Bogen, supra, at

840; Crane, supra, at 330–31.

104

See JOSEPH J. ELLIS, THE QUARTET: ORCHESTRATING THE SECOND AMERICAN REVOLUTION, 1783-

1789, at 123–26 (2015) (explaining Madison’s successful “shift in sovereignty from the state to the national

level”).

105

See, e.g., John M. Gonzales, The Interstate Privileges and Immunities: Fundamental Rights and

Federalism?, 15 CAP. U. L. REV. 493, 499–500 (1986) (“All of article IV, except perhaps for section 3, clause

2, prohibits in one way or another state imposed obstacles to effective federalism.”); Thomas H. Lee, Making

Sense of the Eleventh Amendment: International Law and State Sovereignty, 96 NW. U. L. REV. 1027, 1051

(2002) (distinguishing between the constitutional provisions that “invested the three branches of general

government with national powers intended to create a strong, wealthy, and unified polity where the States were

conceived of as constituent parts of one nation” and the provisions of Article IV, which were “designed to

increase cooperation and to decrease conflict among the States without denigrating their individual internal

sovereignties”); Williams, supra note 23, at 626–27 (“Articles I, II, and III define the composition and the powers

of the three departments of the federal government—legislative, executive, and judicial, respectively. . . .

Article IV . . . . takes as its central focus the ‘horizontal’ relationships between states within the federal Union.”);

Stephen E. Sachs & Steve Sanders, Interactive Constitution: Article IV, Section 1: Full Faith and Credit Clause,

NAT’L CONST. CTR., https://constitutioncenter.org/interactive-constitution/interpretation/article-iv/clauses/44

(last visited Feb. 2, 2022) (“Most of the original Constitution focuses on creating the federal government,

defining its relationship to the states and the people at large. Article IV addresses something different: the states’

relations with each other, sometimes called ‘horizontal federalism.’”).

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harmonious relationships between sovereigns than in the creation of an

overarching government.

106

Horizontal federalism—establishing harmonious and friendly relationships

directly between the states, as opposed to through the mediating structures of the

federal government—was seen by the framers of the Constitution as a central

component of building a cohesive Union. The framers identified the conflicts

between states, as well as differential treatment by states of other states’ citizens,

as a crucial flaw under the Articles of Confederation and a real threat to the

integrity of the Union.

107

What are the implications of a horizontal federalism understanding of Article

IV as a whole for interpretation of the meaning of the Property Clause? A key

one is that the focus on horizontal federalism in Article IV implies a primary

role for Congress, rather than the President, in the implementation of Article IV.

After all, the text of Article IV nowhere mentions the President, but grants any

implementation power for the federal government to Congress or the United

States as a whole.

But there are other bases for a primary role for Congress in the

implementation of Article IV. Congress was understood by the framers as the

representative of the states—indeed, the most important debates in the

Constitutional Convention were whether states would be represented in

Congress equally or by population. The result was a compromise in which

representation would be equal in one chamber (the Senate) and by population in

the other (the House of Representatives). Allocation of seats by state population

in the House means that states are not equally represented in Congress, but

representation is not purely population based. States that have a population

below the minimum for one Representative still receive representation, and that

106

See Williams, supra note 23, at 626–27; Lee, supra note 105, at 1051–52; Douglas Laycock, Equal

Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 COLUM. L. REV.

249, 259–60 (1992).

107

See, e.g., HENDRICKSON, supra note 71, at 214 (noting multiple “trespasses of the states on the rights

of each other” under the Articles of Confederation, including restrictions on trade and commerce, use of paper

money, and debts and contracts, and that these restrictions could beget “retaliations[] . . . ‘adverse to the spirit

of the Union’ and ‘destructive of the general harmony’”); STORY, supra note 71, at 185 (referring to the conflicts

among states over commerce and trade under the Articles of Confederation by explaining “[t]he difference of

regulations was a perpetual source of irritation and jealousy. Real or imaginary grievances were multiplied in

every direction; and thus State animosities and local prejudices were fostered to a high degree, so as to threaten

at once the peace and safety of the Union”).

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has been reflected in the actual distribution of Representatives throughout much

of the history of Congress.

108

In contrast, the President is the sole federal official elected on a national

basis. This point is regularly and repeatedly relied upon in modern constitutional

and administrative law, often as a justification for primacy of the President in

supervision of the federal bureaucracy.

109

It is true (as with the House of

Representatives) that the President’s election is mediated at the state level by

electors through the Electoral College. The difference between the President, a

Representative, and a Senator is that, of course, only the President is chosen by

all states as an individual, while the Senate and the House are collectivities

representing members from individual states. It is also true that the national

nature of the election of the President did not receive a large amount of attention

in the framing and ratification of the Constitution

110

—perhaps because it was

obvious that the Executive (whether plural or singular, whether elected by the

Congress or by the people or electors) would necessarily be in charge of the

entire national government. In the Constitutional Convention, James Madison

did rely on the national constituency for the President in making arguments that

108

For an overview of the problem, see generally Jeffrey W. Ladewig & Mathew P. Jasinski, On the

Causes and Consequences of and Remedies for Interstate Malapportionment of the U.S. House of

Representatives, 6 PERSPS. ON POL. 89 (2008). Particularly notorious is the example of Nevada, which was

admitted with a population far below the minimum needed for one representative in 1864 and continued to have

a population below the minimum until the second half of the twentieth century. See Charles Stewart III & Barry

R. Weingast, Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and

American Political Development, 6 STUD. AM. POL. DEV. 223, 227, 231–32 (1992) (noting how Nevada was

characterized as “America’s Rotten Borough” in the nineteenth century because its population was so small

relative to other states, characterizing Nevada’s admission as the “most egregious effort in the nation’s history

to disregard population and economic criteria in order to admit a state for political reasons,” and noting that

“[h]ad Nevada waited until the standard population criterion had been met, of having enough population to

entitle a state to one member of the House, it would not have entered the Union until 1970”).

109

John Harrison, The Story of In re Neagle: Sex, Money, Politics, Perjury, Homicide, Federalism, and

Executive Power, in PRESIDENTIAL POWER STORIES 133, 160–61 (Christopher H. Schroeder & Curtis A. Bradley

eds., 2009).

110

RAKOVE, supra note 84, at 266 (noting that only Governour Morris argued the President could “embody

a coherent national interest” and that “[n]o one else went as far”); see also JERRY L. MASHAW, CREATING THE

ADMINISTRATIVE CONSTITUTION: THE LOST ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE LAW 141

(2012) (criticizing the idea of the President as “representative of the people” in the early Republic because of

limitations on franchise and limited campaigning).

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the President should have the power to nominate judges.

111

Others made similar

points at a more general level.

112

Nonetheless, the distinctive nature of how the President is elected and the

unique nature of his national constituency is important. And for our purposes, it

is important because it can be understood as reflecting a contrast between

vertical and horizontal federalism. Congress, as a collective group representing

the states, emphasizes a horizontal federalism perspective. The President, as a

single individual representing the entire country, emphasizes a vertical

federalism perspective. Given the horizontal federalism focus of Article IV, this

distinction would imply that Congress should have the primary role in

implementing Article IV.

113

What might such a primary role mean in practice? At the very least, it weighs

against easily finding unilateral presidential power in this context, outside of

explicit congressional authorization. As the next Part develops, this presumption

can be overcome in the right context. This presumption is also not so strong that

it might, for instance, prevent an agency from receiving Chevron deference for

its interpretation of a relevant statute. But it is a presumption that might shift our

understandings of the baseline power of the Executive to act when there is no

explicit statement in the relevant statutory language as to executive power, just

as the courts have sometimes found greater leeway for executive action in the

face of congressional silence in the context of war or foreign affairs.

111

See 2 FARRAND’S RECORDS, supra note 79, at 80–81 (stating the President should nominate judges

because the “Executive Magistrate wd [sic] be considered as a national officer, acting for and equally

sympathising with every part of the U. States,” in contrast to the Senate, where, because of equal representation

of the states, a minority might be able to appoint judges).

112

See id. at 52–53 (Morris stating “[t]he Executive therefore ought to be so constituted as to be the great

protector of the Mass of the people” and therefore needs to be independent of the legislature); id. at 82 (Morris

supporting the presidential nomination of judges by stating “[t]he Executive in the necessary intercourse with

every part of the U. S. required by the nature of his administration, will or may have the best possible

information” about which judges to nominate).

113

My distinction between the national basis for the election of the President and the state basis for the

election of members of Congress should not be taken as a claim that the President will necessarily advance

policy that is more responsive to the nation as a whole compared to Congress. How different electoral

mechanisms might produce different policy preferences or incentives for elected officials depends on a range of

additional factors. See Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53

UCLA L. Rev. 1217, 1231–42 (2006) (describing political dynamics that can make Congress as a whole consider

national-level implications of policy and make presidents focus on policy implications for particular sections of

the country). My distinction simply notes that, as a matter of formal structure, the President is the only nationally

elected official in the Constitution, and that this point further supports the grant in the text of the Property Clause

of decision-making power to Congress.

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There is some irony in applying a horizontal federalism theory of Article IV

to interpreting the Property Clause. Of all the provisions of Article IV, the

Property Clause has driven the growth of the federal government the most. The

management of public lands and territories was one of the largest single

components of the federal bureaucracy in the early Republic

114

and continues to

this day to be the basis for four separate federal agencies, plus the relationship

of the federal government with Puerto Rico, the Virgin Islands, Guam, the

Northern Mariana Islands, and American Samoa. But as noted in the prior Part,

this growth in the federal government was born by a desire to resolve a

horizontal federalism problem—the federal government was needed as a neutral

party between the states to manage the lands held in common by the states and

ensure the creation of new, independent states.

115

And like congressional power

under the Admissions Clause, congressional power under the Property Clause

over federal territories has been historically justified by some courts and scholars

as needed (and limited) to support the development of political entities that could

become members of the Union as states

116

—an argument that connects to the

horizontal federalism problem of admitting new states to the Union.

117

114

GREGORY ABLAVSKY, FEDERAL GROUND: GOVERNING PROPERTY AND VIOLENCE IN THE FIRST U.S.

TERRITORIES 5 (2021) (“The territories were unique sites of federal authority[;] . . . many of the new federal

government’s nationwide responsibilities concentrated there.”); Antonin Scalia, Sovereign Immunity and

Nonstatutory Review of Federal Administrative Action: Some Conclusions from Public-Lands Cases, 68 MICH.

L. REV. 867, 882 (1970) (“In the present age, it is difficult to apprehend the former magnitude and importance

of public-lands law.”).

115

See supra Part I. Commentators at the time argued that admitting new western states to the Union by

increasing the number of states would reduce interstate conflicts and increase the power of the federal

government vis-à-vis the states. ONUF, ORIGINS, supra note 71, at 155.

116

Onuf, Territories and Statehood, supra note 71, at 1283 (“Though congressional power was

constitutionally unlimited and might appear arbitrary and despotic to settlers, its mandate was simply to prepare

a territory for statehood, the culmination of a process of political development.”); Elmer B. Adams, Causes and

Results of Our War with Spain from a Legal Standpoint, 8 YALE L.J. 119, 124, 129 (1898) (arguing that Property

Clause powers should be limited to the purpose of admitting new states and “no territory can be acquired to be

permanently governed . . . as a dependent colony”); Carman F. Randolph, Constitutional Aspects of Annexation,

12 HARV. L. REV. 291 (1898) (arguing the same); O’Donoghue v. United States, 289 U.S. 516, 536–38 (1933)

(relying on the temporary role of territorial governments as preparation for statehood to uphold the creation of

non-Article III territorial courts). This justification is in sharp tension with case law that limited the application

of the Constitution to territories such as the Philippines and Puerto Rico. See, e.g., Downes v. Bidwell, 182 U.S.

244, 263, 277–79 (1901); Dorr v. United States, 195 U.S. 138, 142 (1904). That case law drew on racist

preconceptions about the ability of non-Anglo-American communities to self-govern and on the desire to

establish an American empire that did not require eventual self-governance for all its components, and therefore

rejected arguments that congressional power over territories was limited to facilitating the entry of territories

into statehood. Juan R. Torruella, The Insular Cases: The Establishment of a Regime of Political Apartheid, 29

U. PA. J. INT’L L. 283, 286, 291–96 (2007).

117

Arguments about the obligation of the federal government to admit territories to statehood have been

used also to contest federal ownership of public lands within states. See infra Part III.C.

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There is much more to work out about the possible meaning and implications

of understanding Article IV as a coherent and unified component of the U.S.

Constitution. This Article only sketches a tentative, initial argument. But even

this tentative and initial argument indicates that structural arguments likely cut

against broad claims of executive power under the Property Clause.

C. Executive Management Power

Does the primacy of Congress in implementing the Property Clause and a

tentative understanding of Article IV as a whole mean that there is no role for

executive discretion to play in implementing the Clause? The answer to that

question is no. Given the logistical challenges of managing millions of acres of

federal lands, addressing the myriad complications of day-to-day management

choices, and navigating unforeseen on-the-ground circumstances, the President

must necessarily play some role in filling in the gaps of the statutory commands

issued by Congress.

As an example, consider the broad powers that Congress has over the

territories. As the Supreme Court has noted, Congress functions as the general

government over the territories, like a state government over a county.

118

Given

the challenges of managing territorial governments, delegation by Congress to

the Executive, whether explicit or implicit, is inevitable. Unless Congress is

going to pass legislation, for example, to create counties and cities, regulate

land-use, provide for full penal codes, run public schools, and more, Congress

will necessarily have to delegate these kinds of powers to some sort of territorial

government. This issue would have been obvious to the drafters of the

Constitution, who were aware of the Northwest Ordinance and the governance

structure it created for the territories north and west of the Ohio River.

As with territorial governance, management of federal public lands

necessarily requires management decision-making that is interstitial to any

statutory regime.

119

Courts have therefore at times noted that the President acts

118

See, e.g., Nat’l Bank v. County of Yankton, 101 U.S. 129, 133 (1879) (“The Territories are but political

subdivisions of the outlying dominion of the United States. Their relation to the general government is much the

same as that which counties bear to the respective States, and Congress may legislate for them as a State does

for its municipal organizations.”).

119

Getches explained the following:

[T]he obligation to protect public resources demands that the land management agencies be

relatively unfettered in carrying out their duty. It is not practical for Congress, charged by the

Constitution with ultimate responsibility for management and disposal of extensive public lands,

to do any more than to set broad policies. Consequently, Congress must entrust the executive

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2022] THE PROPERTY CLAUSE 769

as an “agent” for Congress in the management of the federal government’s

“proprietary” interests in its lands and has broad power to interpret and apply

law in this context.

120

The constitutional necessity of residual executive management discretion

has been developed in a range of contexts. Courts have more broadly noted the

importance of executive discretion in the context of property and other forms of

day-to-day government management.

121

Henry Monaghan developed a version

of the concept when he articulated that the Executive necessarily had a

“protective power,” independent of explicit congressional authorization, to

shield the institutions, personnel, and assets of the U.S. government from

with responsibility for implementing those policies. In turn, reviewing courts regularly defer to

an administrative official’s plausible interpretation of how legislation should be implemented,

including the official’s view of the scope of his delegated authority.

Getches, supra note 21, at 289; see also United States v. Midwest Oil, 236 U.S. 459, 474 (1915) (in discussing

the public land laws, noting the need for executive power to respond to any “[e]mergencies [that] may occur, or

conditions [that] may so change”); Note, Implied Authority of the President to Withdraw Public Lands from

Entry, 28 HARV. L. REV. 613, 615 (1915) (characterizing Midwest Oil as “merely a judicial recognition of the

fact that Congress is as likely as any other property owner, busy with affairs, to employ a general administrative

agent whose authority is implied from the principal’s acquiescence”); Bruff, supra note 21, at 503 (“[T]he

function of managing a vast and diverse collection of federal lands has always seemed to call for flexible

administration, for it demands attention to local needs and changing conditions as the manager balances priorities

among many competing uses.”).

120

For case law describing the President as an agent of Congress acting to implement a trust that Congress

holds over the lands for the American people, and accordingly deferring to executive decisions about

management, see, e.g., United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 419 (1931) (upholding refusal

to lease lands for oil and gas under withdrawals in part in “consideration of [the President’s] general powers

over the public lands as guardian of the people”); United States v. Beebe, 127 U.S. 338, 342 (1888) (holding

that the Attorney General has power to file suit to undo land patent for fraud because “[t]he public domain is

held by the government as part of its trust. The government is charged with the duty and clothed with the power

to protect it from trespass and unlawful appropriation”); United States v. Trinidad Coal & Coking Co., 137 U.S.

160, 170 (1890) (upholding a lawsuit by the Executive to enforce a land disposal statute because the public lands

“were held in trust for all the people; and in making regulations for disposing of them, Congress took no thought

of their pecuniary value, but, in the discharge of a high public duty and in the interest of the whole country,

sought to develop the [country’s] material resources”); Midwest Oil, 236 U.S. at 474 (“The power of the

Executive, as agent in charge, to retain that property from sale need not necessarily be expressed in writing.”).

121

For case law specific to property management, see Springer v. Gov’t of Philippine Islands, 277 U.S.

189, 203 (1928) (finding property management to be an executive power in resolving a dispute over whether the

Executive Branch of the Philippine government can manage a corporation). The principle also applies in other

management contexts. See, e.g., United States v. Tingey, 30 U.S. (5 Pet.) 115, 121 (1831) (holding it appropriate

for the Executive to enter into bond without explicit statutory authority); United States v. Macdaniel, 32 U.S. (5

Pet.) 1, 2 (1833) (upholding an executive decision with respect to staffing and pay that proceeded without express

statutory authority); Contractors Ass’n of E. Pa. v. Sec’y of Lab., 442 F.2d 159 (3d Cir. 1971) (holding that the

President has power to adjust terms of contracts if not in violation of law); see also Henry P. Monaghan, The

Protective Power of the Presidency, 93 COLUM. L. REV. 1, 57–58 (1993) (arguing that “[w]ell before Midwest

Oil, the Supreme Court had endorsed a spacious conception of the Executive’s ‘managerial’ power to fill in the

details of statutes”).

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attack.

122

Jack Goldsmith and John Manning identified the President’s

“completion power” to implement constitutional or statutory powers invested in

the President.

123

This “completion power” is independent of explicit

congressional authorization, instruction, or prohibition.

124

Other scholars, in

passing, have also noted the possibility.

125

But in the context of the Property

Clause, where congressional power is at its possible maximum and where

management is also essential and requires flexibility, the need for some residual

executive power becomes clear.

III. A

PPLICATIONS TO PROPERTY CLAUSE CONFLICTS

The constitutional context developed in Part II can help provide a basis for

addressing the disputes introduced in Part I. The textual grant of power to

Congress in the Clause, combined with a horizontal federalism understanding of

Article IV as a whole, leads towards restricting the scope of executive power to

act without congressional authorization. In tension to some extent with that

principle is the necessity of some foundational discretion for the Executive in

implementing the Clause on a day-to-day basis. The tension can be resolved by

recognizing that executive power should be broader where the stakes are

lower—where the result of executive discretion will not be the divestment of

federal ownership or control of land or resources, a relatively irreversible step.

In contrast, where executive discretion would facilitate the protection or

preservation of federal control over resources, or would advance effective

122

See Monaghan, supra note 121, at 58 (“Surely, acting under the most general statutes or under no

statute at all, the executive could prescribe rules for regulating access to federal buildings or land.”).

123

Jack Goldsmith & John F. Manning, The President’s Completion Power, 115 YALE L.J. 2280, 2282

(2006).

124

Id.

125

Then Harvard Law professor Elena Kagan explained the following:

Most executive orders, significant and insignificant alike, involved . . . the administration of

public lands, the public workforce, or other public operations . . . . The President in these cases . . .

asserted his right as head of the executive branch to determine how its internal processes and

constituent units were to function.

Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2291–92 (2001); see also Michael B.

Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation

Doctrine and Its Implications for Clinton v. City of New York, 76 TULANE L. REV. 265, 314, 363–65 (2001)

(arguing that the Executive has broad discretion in the context of contracts, obligations, and debts so long as

there is broad statutory authority, and that this supports excluding these areas from the nondelegation doctrine);

Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. ECON. & ORG. 132,

137 (1999) (“Because presidents are executives, they must be (and in practice are) regarded as having certain

legal prerogatives that allow them to do what executives do: manage, coordinate, staff, collect information, plan,

reconcile conflicting values, and respond quickly and flexibly to emerging problems.”).

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management of those resources, leeway for the Executive is consistent with

congressional primacy—at least unless Congress has spoken to the contrary.

In the context of preemption and the retention of federal land ownership

within the borders of admitted states, the history of the Property Clause as a

resolution to the dispute between the states over western land claims helps

provide a constitutional grounding in support of federal land ownership. The

federal government was selected as the medium to own and manage the lands as

an arbiter between the states—that role does not require disregarding the power

that the Supremacy Clause grants to federal laws, nor does it require divesting

the federal government of land ownership or legislative power under the Clause

once a state is admitted to the Union.

A. Protecting Federal Title

To help explicate the line between congressional primacy and executive

power in the context of the Property Clause and its relationship to the protection

of federal title to lands, this section draws on the President’s withdrawal

power—a power that extends to the early days of public land management in the

United States and is connected to the controversies over both national

monuments and fossil-fuel leasing. In so doing, this section shows that a

horizontal federalism understanding of Article IV constitutionally requires that

only explicit congressional action can divest the federal government of title to

the public domain. Conversely, executive discretion in the public lands context

must be limited to actions that would protect federal title, or at least not result in

the divestiture of federal title. This line between congressional primacy and

executive power distinguishes between unilateral presidential abolition of

national monuments, which threatens federal title without explicit congressional

authorization and so exceeds presidential power, and unilateral presidential

termination of existing fossil fuel leases, which protects federal title and is

permissible so long as there is not an explicit congressional prohibition of

executive action.

This section begins by providing a historical overview of the executive

withdrawal power, which protects lands from disposal or sale. It demonstrates

that the history of this withdrawal power is consistent with congressional

primacy over the public lands under the Property Clause and that the scope of

executive withdrawal power is consistent with requiring explicit congressional

authorization for the disposal of federal lands. It concludes by noting how this

distinction—between executive action that protects federal title and executive

action that threatens federal title—supports distinguishing between the illegality

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of unilateral executive termination of national monuments and the legality of

unilateral executive termination of existing fossil fuel leases.

Withdrawals are actions that remove public lands from the operation of

disposal statutes.

126

As noted in Part I, a range of laws throughout the nineteenth

century allowed individuals and corporations to obtain public lands when certain

conditions were met. Withdrawal of public lands meant categorizing certain

lands as exempt from some or all of these disposal statutes—withdrawals were

typically done by the President or subordinate executive branch officials.

127

through the middle of the twentieth century, withdrawals were a major

component of public lands law and policy in the United States.

128

The

Antiquities Act is among one of the many statutes that explicitly authorized

withdrawals by the President.

129

Other withdrawal laws included the creation of

military and Indian reservations,

130

leasing of lands for valuable mineral

resources,

131

protection of natural resources such as forests,

132

and granting of

land subsidies for railroad construction.

133

Withdrawals are generally less

relevant today because most of the disposal statutes were repealed in 1976 when

Congress confirmed the policy of retaining ownership of the public lands.

134

few statutes remain that allow for the disposal of property interests in public

lands for mining activities, and relatedly for the leasing of public lands for fossil

126

See Getches, supra note 21, at 285–86.

127

Id.

128

See KLEIN ET AL., supra note 26, at 70–71.

129

See Antiquities Act of 1906, 54 U.S.C.A. § 320301.

130

Wilcox v. Jackson, 38 U.S. 498, 512–13 (1839). Congressional approval was often found to be implicit

and retrospective, based on funding for maintenance of reserved areas or on disposal statutes that excluded areas

withdrawn or reserved by presidential action. See Grisar v. McDowell, 73 U.S. 363, 381 (1867) (“The action of

the President in making the reservations in question was indirectly approved by the legislation of Congress in

appropriating moneys for the construction of fortifications and other public works upon them.”).

131

Lands in the 1820s were withdrawn to allow for leasing of the lands for lead mining. LEONARD D.

WHITE, THE JEFFERSONIANS: A STUDY IN ADMINISTRATIVE HISTORY 1801-1829, at 515–16 (1951).

132

See 26 Stat. 1103 (1891) (original statute authorizing presidential creation of forest reserves).

133

Congress funded railroad construction in the western United States by providing grants of federal lands

to railroad corporations in return for construction. This approach required preventing other claimants from taking

the lands that, eventually, were to be transferred to the railroad along the route once the railroad was constructed.

Congress often authorized withdrawal of (and the President sometimes unilaterally withdrew) lands along

railroad routes beginning in the 1850s. LESHY, supra note 71, at 55–57; Darwin P. Roberts, The Legal History

of Federally Granted Railroad Rights-of-Way and the Myth of Congress’s “1871 Shift,” 82 U. COLO. L. REV.

85, 118–20 (2011); GATES, supra note 86, at 181–82; see also Wood v. Beach, 156 U.S. 548, 551 (1895)

(upholding withdrawal in aid of railroad legislation).

134

See Federal Land Policy and Management Act of 1976, Pub. L. 94-579, §§ 701–06 (repealing many

public lands disposal laws); see also 43 U.S.C. § 1701(a)(1) (declaring it the policy of Congress that “the public

lands be retained in Federal ownership”). In practice, most disposal statutes had become mostly inoperative after

1934, when President Franklin Roosevelt withdrew most of the public lands under the authorization of the Taylor

Grazing Act, which provided for leasing of public lands for grazing. See KLEIN ET AL., supra note 26, at 360.

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fuel and other mineral extraction activities.

135

The concept of withdrawal is still

relevant to the extent that it removes public lands from the operation of these

statutes. Congress in 1976 also provided a procedural framework to guide and

constrain presidential withdrawal powers, repealing most other withdrawal

statutes, but retaining the Antiquities Act.

136

One ground for the withdrawal power has been statutory grants of power by

Congress to the Executive.

137

However, particularly from 1900 onwards,

presidents began to claim the authority to unilaterally withdraw lands from the

operation of disposal statutes without any congressional authorization,

138

often

on the grounds that presidential intervention was needed to maintain the status

quo pending congressional action.

139

The source of this claimed authority

varied—sometimes it was framed as a constitutional power inherent in the

President, and sometimes as a power that the President had regularly asserted

and had been acquiesced in by congressional inaction.

140

135

See Mason v. United States, 260 U.S. 545, 552–54 (1923) (holding that mining claims are a form of

“appropriation” covered by a withdrawal); LESHY, supra note 31, at 35, 39–40.

136

Getches, supra note 21, at 280.

137

See supra notes 129–33 and accompanying text.

138

See WHEATLEY, supra note 119, at 82 (providing overview); DOUGLAS BRINKLEY, THE WILDERNESS

WARRIOR: THEODORE ROOSEVELT AND THE CRUSADE FOR AMERICA 442–47, 491–92, 501–02, 570–71, 712,

718–19, 726, 737–38, 747–48 (2009) (providing examples); LESHY, supra note 71 (arguing the same). Examples

exist earlier in history, and the Court in Midwest Oil relied heavily on a range of examples over time. United

States v. Midwest Oil, 236 U.S. 459, 470 (1915). President Roosevelt aggressively used withdrawal powers to

create wildlife refuges. See, e.g., BRINKLEY, supra; LESHY, supra note 71. Leshy argues that these reservations

had statutory authorization, but also notes subsequent legislation that authorized such withdrawals. Id. But see

Britton-Purdy, supra note 38 (arguing that these reservations were “unauthorized”).

139

Withdrawal in aid of legislation was a common basis for presidential withdrawals, preventing disposal

of lands before Congress had a chance to decide how to resolve a policy or legal question about whether to

protect the lands from disposal. President Taft used this rationale in the early 1900s when he withdrew large

areas of land with oil and gas reserves to prevent their disposal into private hands—the withdrawal that prompted

the Midwest Oil case, discussed infra. See President Howard Taft, Message Regarding Environmental Protection

(Jan. 14, 1910) (message to Congress) (transcript available through the American Presidency Project, U.C. Santa

Barbara). President Theodore Roosevelt used this power frequently as well. LESHY, supra note 55 (noting

withdrawals to protect energy resources); JOHN ISE, THE UNITED STATES FOREST POLICY 270–71 (1920) (noting

withdrawals to protect energy resources, with the justification of “pending the enactment [further] of

legislation”); BENJAMIN HORACE HIBBARD, A HISTORY OF THE PUBLIC LAND POLICIES 506–07 (1924) (noting

that in the early twentieth century there were “numerous orders by the President, or by the Secretary of the

Interior, withdrawing from entry certain classes of land pending legislation by Congress”). Withdrawal in aid of

legislation was used earlier, such as in the case of conflicting land grants in Iowa in the late nineteenth century.

Wolcott v. Des Moines Co., 72 U.S. 681, 688–89 (1866) (finding implicit authority of the Executive to be able

to reserve lands to protect purpose of land disposal statutes); Bullard v. Des Moines & Ft. Dodge R.R., 122 U.S.

167, 174 (1887).

140

CHARLES F. WHEATLEY, JR., 1 STUDY OF WITHDRAWALS AND RESERVATIONS OF PUBLIC DOMAIN

LANDS 131–50 (1969) (providing an overview of those arguments).

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The Supreme Court upheld presidential withdrawal power on the basis of

congressional acquiescence in the Midwest Oil case in 1915,

141

shortly after

Congress had passed legislation to provide a comprehensive statutory basis and

framework for presidential withdrawal powers.

142

In 1976, Congress explicitly

rejected any inherent presidential power to withdraw lands and provided

elaborate procedural mechanisms to structure withdrawal powers.

143

Withdrawals therefore provide a rich historical context for exploring the

borders between legislative and executive power. The history both shows regular

congressional intervention as well as executive efforts to assert unilateral power

to act, efforts that were recognized in part by the Supreme Court.

Even more illuminating is an examination of claims by the Executive to

revoke withdrawals and therefore open lands back up to disposal. Generally,

presidents have not asserted the power to undo withdrawals that had been

undertaken pursuant to powers explicitly authorized by Congress.

144

This is true

141

Midwest Oil, 236 U.S. at 459. The Court concluded that there was a long history of withdrawals by the

President without explicit statutory authority and that this practice evidenced congressional acquiescence in

unilateral presidential withdrawal power. Id. at 469–70. The dissent claimed that there was implicit or explicit

statutory authorization for most if not all of these withdrawals. Id. at 489–92 (Day, J., dissenting). The Court

declined to address claims that there was a constitutional basis for unilateral presidential withdrawal power. Id.

at 492. The horizontal theory of Article IV would cut against such a claim. See also Getches, supra note 21, at

286 (“But arguments that the executive has some inherent constitutional authority to make withdrawals of public

lands are without merit.”). The Supreme Court has never endorsed such a theory. Id. at 286–87 n.46; Note,

Implied Authority of the President to Withdraw Public Lands from Entry, 28 HARV. L. REV 613, 614 (1915)

(rejecting a constitutional basis for withdrawal power); James R. Rasband, The Future of the Antiquities Act, 21

J. LAND RES. & ENV’T L. 619, 625 (2001) (“The Supreme Court has never suggested that the President has

inherent withdrawal authority.”). Lower court claims to the contrary are usually based on incorrect

interpretations of Midwest Oil. See Shaw v. Work, 9 F.2d 1014, 1015 (D.C. Cir. 1925); Portland Gen. Elec. Co.

v. Kleppe, 441 F. Supp. 859, 861 (D. Wyo. 1977)

142

A few years before Midwest Oil, Congress passed the Pickett Act, which provided an explicit statutory

basis for presidential withdrawal powers and limits on those powers. Act of June 15, 1910, ch. 421, 36 Stat. 847.

However, the President continued to assert unilateral withdrawal powers, on both constitutional and statutory

grounds—for the latter, by broadly construing executive authority under the Act, leading subsequent courts to

conclude that congressional acquiescence was still in place. Getches, supra note 21, at 294–98; Kleppe, 441 F.

Supp. at 861; Reservation of Public Lands for Migratory Bird Refuge, 37 U.S. Op. Att’y Gen. 502, 1934 WL

1231 (1934) (“There is no specific statutory authority for the issuance of the proposed Executive order. It is well

established, however, that the President has the power to reserve or withdraw lands from the public domain for

public purposes.”).

143

See 43 U.S.C. § 1714 (2014) (restricting withdrawal powers). Congress in the Federal Land Policy and

Management Act of 1976 (FLPMA) explicitly disclaimed any acquiescence in non-statutory presidential

withdrawal powers as identified in Midwest Oil. FLPMA, Pub. L. 94-579, § 704(a).

144

For executive branch statements, see, e.g., Transfer of National Monuments to National Park Service

in the Department of the Interior, 36 U.S. Op. Att’y Gen. 75, 79 (1929) (“This Department has frequently ruled

that, in the absence of authority from Congress, the President may not restore to the public domain lands which

have been reserved for a particular purpose, nor transfer their control from one Department to another.”). For

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for the designation of military reservations

145

as well as for National Forests

146

—

in both cases the individual units were designated by the President pursuant to

an overarching statutory authority, similar to the Antiquities Act. I have not

found any examples of a court upholding a presidential revocation of a

withdrawal originally authorized pursuant to a statute.

147

case law making this point, see, e.g., United States v. Tichenor, 12 F. 415, 421 (D. Or. 1882) (“If there was a

valid reservation established at Port Orford prior to September 11, 1854, for a military post[] . . . the land

contained in it was thereby appropriated and withdrawn from the public domain, and could not be thereafter

otherwise appropriated, except by the authority of congress.”); S. Pac. R.R. v. Groeck, 87 F. 970, 974 (9th Cir.

1898) (stating if a withdrawal is mandated by law, then “the secretary of the interior is powerless to . . . set[]

aside his order of withdrawal. . . . After such lands have once been set aside by congressional act, no authority

is vested in the secretary of the interior . . . to restore them”); S. Pac. R.R. Co. v. Wiggs, 43 F. 333 (N.D. Cal.

1890). But see United States v. R.R. Bridge Co., 27 F. Cas. 686, 690 (N.D. Ill. 1855) (“[I]t does not follow, that

where the government reserves its own land from sale, for any public purpose that a special act of congress after

its abandonment is necessary for the sale of it.”).

In the Indian reservation context, clear statutory authorization is required for the President to terminate

a reservation created by an executive order, based on congressional legislation that has protected those

reservations. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 189, 194 n.5 (1999); United

States v. S. Pac. Transp. Co., 543 F.2d 676, 686 n.15 (9th Cir. 1976) (stating that legislation in 1919 and 1927

prohibited termination or shrinking of EO reservations). Prior to that legislation, Supreme Court decisions found

that in some circumstances, reservations created by executive orders might be terminated by the President or

Congress without compensation. Sioux Tribe of Indians v. United States, 316 U.S. 317, 331 (1942); Confederate

Bands of Ute Indians v. United States, 330 U.S. 169, 176 (1947). Reservations created by statute or treaty can

only be shrunk or eliminated by Congress. 1 COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 15.09[1][b] (Nell

Jessup Newton et al. eds., 2012 ed.).

145

For statements that military reservations depended on congressional authorization, see Rock Island

Mil. Rsrv., 10 U.S. Op. Att’y Gen. 359, 361 (1862) (“This selection of Rock Island for military purposes was

not, as we have seen, the unauthorized act of the President; but was made in the exercise of a discretion vested

in him by Congress.”). For statements that military reservations cannot be undone by the President once

designated, see id. at 363; Camp Wright, 16 U.S. Op. Att’y Gen. 121, 123 (1878); Naval Rsrv. Restoration to

Pub. Domain, 21 U.S. Op. Att’y Gen. 120, 121 (1895); Mil. Rsrv. at Fort Fetterman, 17 U.S. Op. Att’y Gen.

168, 168–69 (1881).

146

Under the original statute authorizing presidential designation of National Forests, there was no explicit

grant of authority to the President to revoke or shrink those designations. Such power was eventually granted in

the Forest Service Organic Act, partly in response to doubts about presidential power here. See Britton-Purdy,

supra note 38 (providing overview); WHEATLEY, supra note 140, at 282 (“Nor, it would appear, does the

President have power to modify or revoke forest reserves effected by him pursuant to some specific delegation

of authority other than the Act of 1891.”); Forest Service Organic Act of 1897, ch. 2, 30 Stat. 34, 36 (codified

as amended at 16 U.S.C. § 473). Some have argued that the text of the statute—which specified the power of

the President to revoke National Forest proclamations “to remove any doubt which may exist pertaining to the

authority of the President thereunto,” Forest Service Organic Act of 1897, ch. 2, 30 Stat. 30, 34—means that no

firm conclusions should be drawn from this action by Congress. See Yoo & Gaziano, supra note 21, at 631.

However, other statutes granting presidential withdrawal powers had revocation provisions, including statutes

contemporaneous with the Antiquities Act, implying that Congress did think an explicit grant of revocation

power was required. See Rasband, supra note 141, at 627.

147

The most thorough survey of withdrawal practices concluded that when “land is withdrawn by statute

and the statute contains no authority to revoke the withdrawal or if the statute authorizes the Executive to

withdraw lands after certain criteria have been met but contains no authority to revoke the withdrawal,” there is

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Since President Theodore Roosevelt greatly expanded the use of

withdrawals without any explicit statutory authorization, subsequent presidents

have unilaterally revoked those types of withdrawals,

148

a supportable outcome

since the initial withdrawals were not pursuant to congressional authorization.

Piecing this historical practice together produces the following synthesis:

Absent explicit congressional authorization or prohibition, the President may

have power to withdraw lands from the disposal statutes; however, the President

must have explicit congressional authorization to revoke a congressionally

authorized or mandated withdrawal.

Support for this synthesis comes from case law in which courts have required

explicit statutory authority for the disposal of property pursuant to the Property

Clause and rejected efforts by executive branch officials to dispose of federal

lands unilaterally.

149

John Leshy has argued that this principle of statutory

interpretation that reads statutes against finding divestiture of federal lands

without clear statements by Congress is based in a “constitutional common law”

doctrine for which the Court “has never fully articulated a rationale.”

150

Leshy

has reasoned that the principle stems from the judicial recognition of the political

imbalance among the various players in public lands politics, “a largely

no consensus over whether “the Executive’s authority to revoke the withdrawal order and restore the land.”

WHEATLEY, supra note 140, at A-8. However, the only judicial cases cited by the author find no executive power

to revoke withdrawals without explicit congressional authorization to do so. Id. at A-9 nn.27–28. The other

citations finding executive power to revoke withdrawals are administrative decisions within the Interior

Department. Id.

148

WHEATLEY, supra note 140, at A-9 (“[S]ince the President was authorized to withdraw land from the

public domain for public purposes, this authority necessarily implies the power to revoke the withdrawal when

it has served its purpose”); Rasband, supra note 141, at 625–26.

149

See, e.g., Royal Indemnity Co. v. United States, 313 U.S. 289, 294 (1941) (“Power to release or

otherwise dispose of the rights and property of the United States is lodged in the Congress by the Constitution.

Subordinate officers . . . are without that power, save only as it has been conferred upon them by Act of Congress

. . . .”); Greene Cnty. Planning Bd. v. Fed. Power Comm’n, 559 F.2d 1227, 1234–35, 1239 (1976); Equity Tr.

Co. v. McDonald, 806 F.3d 833, 834 (5th Cir. 2015) (“This Property Clause of the Constitution vests in the

legislature ‘“the absolute right to prescribe” the manner in which its property is transferred.’ . . . Absent

congressional permission, government officials may not ‘release or otherwise dispose of’ government

property.”); Spirit Lake Tribe v. North Dakota, 262 F.3d 732, 740 (8th Cir. 2001) (concluding that the United

States “cannot abandon property without congressional authorization”); Int’l Aircraft Recovery v. Unidentified,

Wrecked, and Abandoned Aircraft, 218 F.3d 1255, 1258 (11th Cir. 2000); Rio Grande Silvery Minnow v. Bureau

of Reclamation, 599 F.3d 1165, 1185 (10th Cir. 2010); see also Rock Island Mil. Rsrv., 10 U.S. Op. Att’y Gen.

359, 361 (1862) (“[T]he power to dispose of the public lands under this clause, whether by sale or by

appropriation to other uses, belongs to Congress, and not to the President.” (citation omitted)). But see Edwards

v. Carter, 580 F.2d 1055, 1061–63 (D.C. Cir. 1978) (holding that the Property Clause is not the exclusive manner

by which property can be transferred to foreign countries and identifying the Treaty Clause as an alternative

approach). Edwards can be understood as allowing disposal if an alternative constitutional basis for presidential

or congressional authority for action exists. This may be most plausible in the foreign relations context.

150

Leshy, supra note 21, at 1105–13.

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unarticulated but realistic assessment of the pressures brought to bear on the

Congress (and, to some extent, the executive) in making federal land policy

decisions” that “the political power possessed by privatization advocates”

required a firm judicial counterweight.

151

The principle of requiring explicit congressional authorization for disposal

of federal lands applies beyond interpretation of the language of statutes. The

Court in Midwest Oil found it significant that the non-statutory withdrawal

actions that the President undertook would protect against disposal of valuable

public resources, allowing for a broad construction of executive power in the

absence of explicit statutory authorization or prohibition:

But when it appeared that the public interest would be served by

withdrawing or reserving parts of the public domain, nothing was more

natural than to retain what the government already owned. And in

making such orders, which were thus useful to the public, no private

interest was injured. For, prior to the initiation of some right given by

law, the citizen had no enforceable interest in the public statute, and

no private right in land which was the property of the people. The

President was in a position to know when the public interest required

particular portions of the people’s lands to be withdrawn from entry or

location; his action inflicted no wrong upon any private citizen, and

being subject to disaffirmance by Congress, could occasion no harm

to the interest of the public at large.

152

In other words, we might wish to broadly defer to presidential withdrawal

powers in areas where Congress has not spoken directly because it protects

congressional power to decide how to use the public lands later on by preventing

disposal.

153

Based on the analysis in Part II, at least two constitutional arguments

underpin the principle that courts should be reluctant to find implicit statutory

authorization for divestiture of federal public lands. First, the text of the Property

Clause gives Congress power to “dispose” of the public lands.

154

This grant of

151

Id. at 1111–12.

152

United States v. Midwest Oil, 236 U.S. 459, 471 (1915). The Court also implied that acquiescence

would not apply to disposal of public lands, consistent with case law that rejects executive power to dispose

absent explicit statutory authority. Id. at 473–74 (distinguishing a situation where the Executive unilaterally acts

such “that private rights could be created by an officer withdrawing for a Rail Road more than had been

authorized by Congress in the land grant act”).

153

Getches, supra note 21, at 280, 287 (“To allow uses without some delegation of authority from

Congress arguably usurps the authority of the legislative branch under the Property Clause. To deny private uses,

on the other hand, preserves congressional prerogatives and flexibility.”).

154

U.S. CONST. art. IV, § 3, cl. 2.

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textual power with specificity as to disposal could be understood as reserving to

Congress the power to decide when and how to divest ownership through sale

or grant. Disposal, however, likely had a broader meaning than simply

divestiture of ownership to the drafters of the Constitution.

155

Thus, the better

understanding of the import of the textual grant of primacy to Congress with

respect to disposal and the power to enact “needful rules and regulations”

156

for

the public lands is a practical one—divestiture is a drastic step that transfers

ownership from the federal government to another party, and is in some ways

irreversible.

157

A revocation of a withdrawal in essence opens up public lands to

divestiture from the federal government—protecting congressional primacy

with respect to both disposal and the power to enact needful rules and regulations

would mean that we should be leery of allowing executive discretion, absent

clear congressional authorization, to advance divestiture of federal lands.

The same conclusions are also supported by the second argument, a

“horizontal federalism” understanding of Article IV, which likewise emphasizes

congressional primacy with respect to implementation of the Clause. This

horizontal federalism understanding of the role of the Property Clause within

Article IV provides a structural constitutional basis for the policy-based

argument that Leshy develops and dovetails with it, as both the horizontal

federalism understanding and Leshy’s argument recognize the importance of

preventing the loss of federal public resources without explicit congressional

authorization.

158

Applying the principles above allows us to distinguish between the two

examples for considering executive power under the Property Clause introduced

in Part I: the revocation of national monuments and the termination of fossil fuel

leases. As noted above, the creation of national monuments is a form of

withdrawal power.

159

The statute does not give the President the authority to

155

See Leshy, supra note 9.

156

U.S. CONST. art. IV, § 3, cl. 2.

157

Divestiture is reversible only through (1) a consensual sale or gift by the new owner, or (2) the use of

eminent domain by the government.

158

This analysis also provides a basis for distinguishing between federal acquisition of lands, where the

Court has never required a clear statutory authorization for acquisition, and divestiture, even though the text of

the Property Clause does not provide for such a distinction. See Leshy, supra note 21, at 1110 (noting this

dichotomy).

159

Contra Yoo & Gaziano, supra note 21, at 636 (claiming that monument proclamations are different

from withdrawals). For instance, national monuments today protect designated lands from disposal under the

Hard Rock Mining Act, a statute that authorizes the creation of at least a limited property right for individuals

and entities that undertake mining operations on public lands. See LESHY, supra note 31, at 35, 39–40 (noting

the history of the Act as a disposal statute and that the definition of withdrawals under FLPMA includes

removing lands from the operation of the Mining Act).

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undo the creation of national monuments.

160

Similar statutes that give only the

power to create, not revoke withdrawals, have been interpreted as not implicitly

giving the President the power to revoke withdrawals—where this has been

identified as a problem, Congress resolved the situation by amending the statutes

to grant revocation powers to the President.

161

Identifying an implied revocation

power would be a significant expansion of presidential power in tension with

congressional primacy under Article IV because it would facilitate the disposal

of lands without explicit congressional authorization.

162

In contrast, executive power to terminate fossil fuel leases leads to a very

different conclusion. Leases are both transfers of property rights (like sale),

albeit limited in time, as well as contracts. And as contracts, leases necessarily

require decision-making by the Executive Branch about how to structure the

terms, when to enter into them, and when to terminate them.

160

There have been presidential actions to diminish national monuments since the enactment of the

Antiquities Act but none have been litigated in court, none occurred between President Kennedy and President

Trump, and the vast majority of such presidential actions involved minor corrections to monument boundaries

or efforts to improve resource protection within the monuments. See Ruple, supra note 37. The most substantial

revisions were in Glacier Bay, Alaska and Mt. Olympus, Washington, both justified on military grounds. Id. at

70–75. Congress has also enacted specific legislation authorizing the modification of particular monuments. Id.

at 28–30.

161

See James R. Rasband, Stroke of the Pen, Law of the Land?, 63 ROCKY MT. MIN. L. INST. 21-1, 21-20

(2017) (making this point); Ruple, supra note 37, at 26–29.

162

Two commentators have argued that there is a general presumption in American constitutional law that

when Congress grants authority to the President to take an action, the President has the authority to revoke that

action unless Congress has specifically prohibited revocation. Yoo & Gaziano, supra note 21, at 639–47. Even

if such a general presumption exists, the analysis in this Article indicates that in the context of Article IV and

the Property Clause, such a presumption should not apply when it comes to the disposal of property by the

Executive. Similarly, these commentators have argued that “Congress is also constitutionally prohibited from

delegating a statutory power to the President and then micromanaging the discretion granted.” Id. at 646. Again,

even assuming this assertion is true in general, the analysis in this Article indicates the limits of this claim in the

context of Article IV and the Property Clause. Congressional supremacy with respect to disposal of federal

property should allow significant congressional power to constrain executive discretion to act, even where (as

discussed infra) the President may have default discretion to act in their managerial capacity.

A recent opinion by Chief Justice John Roberts raises the question of whether the Antiquities Act has

been used overly broadly by the President to designate new monuments. In a statement accompanying the denial

of certiorari in an unsuccessful lawsuit challenging the creation of a marine national monument off the coast of

New England, Roberts questioned whether the broad designation of monuments protecting submerged lands and

ecosystems was consistent with the Act’s requirement that designations “must be limited to the smallest area

compatible with the care and management of the objects to be protected.” Mass. Lobstermen’s Ass’n v.

Raimondo, No. 20–97, slip op. at 3 (Mar. 22, 2021). Roberts questioned whether the Antiquities Act “has been

transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above

and below the sea.” Id. However, a broad understanding of presidential power to designate monuments under

the Antiquities Act would be generally consistent with the horizontal federalism framework developed in this

Article. The Act is an explicit congressional authorization to the President to designate monuments, and a broad

interpretation of presidential power under the Act would be consistent with protecting federal title from being

divested improperly.

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Thus, they implicate more directly the managerial, interstitial powers of the

President and the Executive Branch that are inherent in the implementation of

the Property Clause. The Supreme Court has upheld unilateral executive power

to terminate contracts, at least absent congressional prohibition or restriction of

that power.

163

There are historical precedents for unilateral executive power in the context

of determining the specific terms for contracts involving public lands

transactions. President Andrew Jackson required all payments for public lands

sales to be made in gold or silver (“specie”) rather than in bank notes.

164

The

decision was extremely controversial.

165

The policy had been specifically

rejected by Congress a few months before, although Congress had not passed

legislation prohibiting presidential action,

166

and one of Jackson’s few

congressional supporters on the topic said that Jackson waited until Congress

adjourned to issue the policy because of “fear that Congress would counteract it

by law.”

167

Multiple leading senators argued that the policy was unconstitutional

as infringing on congressional powers under the Property Clause.

168

Eventually

the policy was overturned by congressional legislation,

169

and it was never

challenged in court. Even with that controversy, however, Jackson’s policy

163

United States v. Corliss Steam-Engine Co., 91 U.S. 321, 322 (1875); see Biber & Diamond, supra note

41.

164

See GATES, supra note 86, at 175; U.S. SECRETARY OF THE TREASURY, CIRCULAR TO RECEIVERS OF

PUBLIC MONEY, AND TO THE DEPOSITE BANKS (July 11, 1836), in THE FINANCIAL REGISTER OF THE UNITED

STATES 14–15 (1836) (announcement of the policy by Treasury Department). Because the policy was announced

in a Treasury Department Circulate, it is often called the Specie Circular. For additional examples of the

Executive Branch flexibly changing payment options or sale terms for public lands sales, see HIBBARD, supra

note 139, at 212; GATES, supra note 86, at 209 (GLO in 1856 temporarily stops land sales to pressure Congress

to change the law); id. at 558 (GLO sets maximum price for sales in late-nineteenth century); id. at 704–05 (War

Department changes terms for royalty payments for lead mines in Midwest in early twentieth century).

165

See Richard H. Timberlake, Jr., The Specie Circular and Distribution of the Surplus, 68 J. POL. ECON.

109, 110 (1960); see also Peter L. Rousseau, Jacksonian Monetary Policy, Specie Flows, and the Panic of 1837,

62 J. ECON. HIST. 457 (2002) (Jackson pointed to legislation from the 1810s as legal justification for his actions).

THOMAS BENTON, 1 THIRTY YEARS’ VIEW: OR, A HISTORY OF THE WORKING OF THE AMERICAN GOVERNMENT

FOR THIRTY YEARS, FROM 1820 TO 1850, at 676–77 (1854) (citing A Resolution Relative to the More Effectual

Collection of the Public Revenue, 3 Stat. L., 343 (Apr. 30, 1816)).

166

Timberlake, supra note 166, at 110.

167

THOMAS BENTON, supra note 165, at 676.

168

See, e.g., 24 Cong. Reg. Deb. 93 (Dec. 21, 1836) (speech by Sen. Webster); 24 Cong. Reg. Deb. 375

(Jan. 11, 1837) (remarks by Sen. Calhoun); 24 Cong. Reg. Deb. 369, 372 (Jan. 11, 1837) (remarks by Sen. Clay).

169

Congress passed a resolution disapproving of the Circular in 1837 but Jackson refused to sign the

resolution before he left office, and it took almost two more years for Congress to pass legislation overturning

the policy. Rousseau, supra note 165, at 478; Repeal of the Specie Circular, 5 Stat. 310 (May 31, 1838).

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appropriately reflects the type of managerial decision-making that likely should

be within the power of the President, absent specific congressional direction.

170

The revocation of fossil fuel leases also does not raise the same issues as

withdrawal revocations, because the revocation of leases does not open lands up

to disposal in the way that withdrawal revocations do.

171

Revocations of leases

are a form of protecting public lands against disposal, something that the courts

have identified as within the powers of the Executive Branch’s authority as

“guardian of the people” and consistent with Midwest Oil.

172

Thus, revocations

do not trigger the same judicial concerns about unilateral executive disposal of

federal lands and are more available to presidential discretion.

B. Preemption

As discussed in Part I, some commentators have questioned the preemptive

power of congressional legislation under the Property Clause. There is no basis

in the text of the Constitution for considering actions under the Property Clause

to have less legal authority than actions under any other clause empowering

Congress to act.

173

The text of the Clause authorizes Congress to enact “needful rules and

regulations,” and some scholars have argued that “needful” is limited to the

implementation of other enumerated powers of the Constitution, drawing an

analogy to the Necessary and Proper Clause.

174

But rules and regulations are

forms of legislation,

175

and interpreting them differently from other

170

Jackson justified the Circular on the grounds of prevention of fraud and speculation on the public lands,

arguments that are consistent with a managerial justification for presidential action. Andrew Jackson, Eighth

Annual Message to Congress (Dec. 5, 1836) (transcript available at https://millercenter.org/the-presidency/

presidential-speeches/december-5-1836-eighth-annual-message-congress). Whether the 1816 legislation

granted discretion to the President to act, prohibited presidential action, or simply did not speak to the matter

was never litigated in court.

171

See Britton-Purdy, supra note 38, at 945–48 (describing a “presumption against presidential

privatization”).

172

See United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 419 (1931) (upholding the discretion of

the Secretary of the Interior to refuse to issue prospecting licenses for oil and gas development).

173

See Appel, supra note 21, at 10 (“The Property Clause’s unconditional wording resembles that of other

broadly interpreted clauses, such as the power over immigration, patents, or foreign relations.”); Goble, supra

note 21, at 498–99; Gaetke, Refuting, supra note 21, at 635–36 n.129 (“Surely no language of the Constitution

itself supports the assertion that the article IV power is inferior to other congressional powers.”)

174

Natelson, supra note 21, at 350, 363–65 (emphasis omitted); Brodie, supra note 21, at 710–11.

175

But see United States v. Midwest Oil, 236 U.S. 459, 474 (1915) (“[T]he land laws are not of a legislative

character in the highest sense of the term (art. 4, § 3), ‘but savor somewhat of mere rules prescribed by an owner

of property for its disposal.’”). However, in the same opinion the Court recognizes that Congress has “legislative

power over the public domain.” Id.

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congressional powers would seem to downgrade the Property Clause as a lesser

enumerated power, for which there is no basis in the structure or text of the

Constitution. Moreover, the separate authorization in the Clause for Congress to

“dispose” of the public lands, under contemporary late eighteenth century

definitions of the word, could broadly include a wide range of management that

could cover current congressional legislation under the Clause.

176

Nor is there

any evidence from the debates in the Convention or the ratification that would

limit the power of Property Clause legislation. While there is contradictory

language in Supreme Court case law over the years about the preemptive power

of Property Clause legislation, much of the language is dicta

177

and the most

recent case law uniformly supports preemption.

178

176

Leshy, supra note 9. For a scholar arguing that even congressional action pursuant to “disposal” does

not necessarily provide preemptive power, see Engdahl, supra note 21, at 367 (limiting preemption under the

disposal language to matters within the enumerated powers of Article I).

177

See Kleppe v. New Mexico, 426 U.S. 529, 538–39 (1976); see also Leshy, supra note 9, at 527–30,

534–50 (summarizing the relevant case law); Appel, supra note 21, at 10–11, 32–33, 56–73 (discussing the

relevant case law); Gaetke, Refuting, supra note 21, at 638–51 (discussing the relevant case law). The scholarship

arguing against preemptive power under the Property Clause relies heavily on dicta in nineteenth century cases.

See, e.g., Engdahl, supra note 21, at 293–96, 298–99, 303 (citing and discussing case law); Leshy, supra note 9

(making this point); Goble, supra note 21, at 509.

178

See, e.g., Kleppe, 426 U.S. at 536–38. For scholars supporting the idea that federal power is preemptive,

see Gaetke, Congressional Discretion, supra note 21, at 386–87; Leshy, supra note 9.

Jeffrey Schmitt has argued that congressional debates in the first half of the nineteenth century show a

consensus that the Property Clause did not give the federal government general preemptive power within a state,

but only limited preemptive power to protect federal land ownership and disposal. Schmitt, Limiting the Property

Clause, supra note 21, at 158–64. However, most of the examples drawn on by Schmitt have limited value

because of their ambiguity. Schmitt relies on the lack of objection to the possibility of federal sovereignty around

the time of ratification, id. at 157, and notes that disputes over federal jurisdiction over its lands focused on

limitations on state power to interfere with federal land disposal, id. at 158–59. Of course, given the primacy of

disposal in federal land policy at the time, this focus is understandable. Other examples drawn on by Schmitt are

ambiguous as to whether they refer to general federal jurisdiction over territories or the more limited federal

jurisdiction over its lands. See, e.g., id. at 159–60 (quoting debates over Tennessee’s jurisdiction over federal

lands where the arguments are that granting Tennessee jurisdiction as a state does not necessarily give it

ownership over federal lands). Some quotes recognize that states have jurisdiction over federal lands as a default

matter, see, e.g., id. at 165 (quoting statements that under equal state sovereignty, western states can legislate

over federal lands with the same powers as eastern states)—which is consistent with a preemptive power for the

Property Clause, as preemption of state law only occurs with congressional legislation and preemption applies

equally to all states. There are some examples of statements in Congress that directly address broad preemptive

congressional powers and are inconsistent with other contemporary statements with significant weight, including

early Supreme Court case law. See, e.g., United States v. Gratiot, 39 U.S. 526, 538–39 (1840) (upholding the

lease of federal land within the borders of a state).

Congress can obtain exclusive jurisdiction over federal property under the Enclave Clause of Article I.

U.S. CONST. art. I, § 8, cl. 17. Some commentators have argued that the existence of the Enclave Clause must

mean that federal power under the Property Clause does not preempt state power, at the risk of making the

Enclave Clause redundant. See Schmitt, Limiting the Property Clause, supra note 21; Patterson, supra note 21,

at 60; Engdahl, supra note 21, at 296; Hardwicke et al., supra note 21, at 418–20. That argument, however,

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Alternatively, some commentators have argued that the Clause involves

“proprietary” legislative powers that cannot support preemption. There is

substantial Supreme Court case law drawing on proprietorship as support for

congressional power under the Clause.

179

But there is also case law (often

language in the same cases) stating that Congress has legislative or regulatory

power under the Clause in addition to its proprietary powers.

180

The Court has

never endorsed the “proprietary/legislative” distinction as a reason to limit

congressional preemptive power under the Clause and has never clearly

separated the two powers either.

In addition, as laid out in Part II.A, any distinction between proprietary and

legislative powers for Property Clause purposes is in sharp tension with the

purpose of including the Property Clause in the Constitution, which was to

resolve jurisdictional (not just ownership) disputes over the western land

claims.

181

Resolution of those land claims involved not only disputes over

overlooks the fact that federal power under the Enclave Clause is exclusive of any state power, while under the

Property Clause it is concurrent with state power, an important distinction. See Kleppe, 426 U.S. at 542–43; see

also Leshy, supra note 9, at 514–16 (noting this argument); Appel, supra note 21, at 4 n.15 (noting this

argument); Goble, supra note 21, at 500 (arguing that just because the Enclave Clause “completely preempts

state law” does not mean Article IV has “no preemptive power”). Of course, these default rules can be contracted

around by the state and federal government through agreements as to what powers the state will cede to the

federal government when the state consents to a federal enclave, through federal adoption of state laws in

governing an enclave or in federal use of blanket preemption on federal lands outside enclaves. See Schmitt,

Limiting the Property Clause, supra note 21, at 153–54 (noting this possibility and arguing that it means that the

distinction between concurrent and exclusive powers between the Property and Enclave Clauses is not relevant).

However, the default rules do matter because they set the terms by which negotiations or subsequent legislation

must occur. Thus, a Property Clause with preemptive power is not redundant with the Enclave Clause.

179

Camfield v. United States, 167 U.S. 518, 525 (1897) (upholding federal law on ground that it prevented

government property from nuisances); United States v. Grimaud, 220 U.S. 506, 516 (1911) (upholding

delegation by Congress to land management agency because “an owner may delegate to his principal agent the

right to employ subordinates, giving to them a limited discretion”); Light v. United States, 220 U.S. 523, 536

(1911) (“But ‘the nation is an owner, and has made Congress the principal agent to dispose of its property.’”).

180

Camfield, 167 U.S. at 525–26 (upholding congressional power to regulate private property adjoining

federal lands to protect federal lands while acknowledging that “[t]he general government doubtless has a power

over its own property analogous to the police power of the several States”); Grimaud, 220 U.S. at 516 (upholding

Forest Service regulations on the grounds that they are less significant than municipal ordinances); Kleppe, 426

U.S. at 536–37 (rejecting claims that Congress’s power is limited to making rules regarding the use and

protection of federal property); Schulenberg v. Harriman, 88 U.S. 44, 62 (1874) (holding that rules that apply to

private property transactions do not necessarily apply to federal land grants) (“A legislative grant operates as a

law as well as a transfer of the property, and has such force as the intent of the legislature requires.”).

181

See supra Part II.A; see also Gaetke, Refuting, supra note 21, at 624 n.50 (“The unlanded states feared

that the landed states would dominate the national government if they were permitted to create daughter states

in the western lands.”); Appel, supra note 21, at 21 (noting Maryland’s position that jurisdiction, not just title,

over western land claims should be ceded to the United States because of concerns that the new states would

otherwise be “loyal lackeys to their parents”); id. at 24–25 (noting that legislation adopted by the Continental

Congress gave Congress control over ceded western lands, effectively adopting the Maryland position); Goble,

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proprietorship, but also disputes over sovereignty. The federal government was

to be owner and sovereign of the ceded lands to ensure that those lands would

be formed into new states that were separate and independent from the existing

states. The federal government never simply played a role as landowner—as

demonstrated (if nothing else) by the role played by the federal government as

sovereign for the territories before admission as states.

Nor would this federal role as proprietor and neutral sovereign disappear

when the federal land is included within a newly admitted state. During the

1770s and 1780s, disputes over land ownership and sovereignty were necessarily

within existing states, as there were only states, not territories, at the time. For

instance, disputes over land ownership and sovereignty in the area that is now

Vermont included at least three claimants—New Hampshire, New York, and the

unrecognized state of Vermont—two of which were members of the Articles of

Confederation.

182

A fight over land ownership and sovereignty occurred in the

Wyoming Valley within the borders of Pennsylvania between claimants under

Connecticut and Pennsylvania grants.

183

Resolution of these disputes necessarily

involved the U.S. government,

184

and a fear that these disputes might prompt

supra note 21, at 523 (arguing that in the debates in the 1780s over the western land claims, “the primary issue

was determining who would make the specific decisions” about how to manage those lands and noting “[t]he

compromise was the determination that the decision would be made on a federal, instead of a state basis.

Henceforth, the western lands would be held for the common good with no particular state’s citizens to be

preferred”). Appel makes the point most clearly:

[S]tate power over the lands ceded to the United States would have allowed the ceding states to

have more power than the states without such land claims. Collectively, the states could trust only

the United States to properly govern and serve as a neutral arbiter of the western lands. Therefore,

as first set forth in the constitutional convention, the United States was not merely a proprietor

over its property; it had the powers of a sovereign.

Appel, supra note 21, at 29–30.

182

For a thorough history of the jurisdictional conflicts over what became Vermont between New York,

New Hampshire, and those who sought to create a separate state of Vermont, see ONUF, ORIGINS, supra note 71,

103–48.

183

See id. at 49–75 (providing an overview of the dispute); id. at 8–11 (noting how Connecticut in 1775

sent armed troops into Pennsylvania to enforce its claims to be able to grant lands in the Wyoming Valley, and

how Connecticut settlers defied Pennsylvania state authority). The legal aspects of the Wyoming dispute were

resolved by a trial set up under the Articles in 1781, though conflict on the ground continued afterwards. Id. at

19–20, 58–59. A similar dispute existed between Virginian settlers in southwestern Pennsylvania and the

Pennsylvania government, which was resolved by an agreement between Virginia and Pennsylvania in 1779. Id.

at 49–74.

184

A trial under the Articles resolved the Wyoming dispute. Negotiation facilitated by Congress between

New York and Vermont, and congressional recognition of Vermont as a state, resolved the Vermont dispute;

observers also noted that any alternative that did not recognize Vermont would require either the use of force by

the Continental Congress to subdue the Vermonters, or the possibility of combined military action by New York

and New Hampshire against the Vermonters, raising the specter of interstate conflict. Id. at 114–15, 123.

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interstate conflict and dissolution of the United States was a major motivator for

the Constitution.

185

This history leads to another reason why the preemptive power of federal

legislation with respect to federal land under the Property Clause would not end

even after the admission of a state. The dispute over the western land claims was

also a claim by the landless states that those western lands reflected the shared

sacrifice of all the colonies that had fought for independence. The decision to

transfer ownership and sovereignty of those lands to the federal government can

be understood as a victory for that perspective—that the federal government was

the repository of the lands on behalf of the states.

This language identifying the United States as a trustee for the states (and,

more broadly, for the people as a whole) in its ownership of those public lands

has a long and rich history in American law and politics. The Supreme Court has

drawn on this language regularly in its case law upholding federal power over

the public lands.

186

For instance, in Camfield v. United States, the Court upheld

the application of a federal law beyond the property border to private land

adjoining the federal lands.

187

The Court rejected arguments that this would

improperly undermine state sovereignty because the federal government

required the power to protect its lands against states, including the state where

the land was located, in order to protect the interests of the broader American

public: “A different rule would place the public domain of the United States

completely at the mercy of state legislatures.”

188

If the United States did not

exercise this power to protect its lands, then it “would be recreant to its duties as

trustee for the people of the United States to permit any individual or private

corporation to monopolize them for private gain.”

189

C. Equal Footing and Equal Sovereignty

The last question is whether the power of Congress with respect to federal

lands should be limited within states because it would undermine the sovereignty

185

Hamilton drew on the conflict over the Wyoming Valley and Vermont as a reason for ratification of

the Constitution. THE FEDERALIST NO. 7, at 60, 61–62 (Alexander Hamilton) (Clinton Rossiter ed. 1961); see

also ONUF, ORIGINS, supra note 71, at 149–53 (noting the role that these disputes played in motivating a sense

of “political crisis” in the lead up to the Constitutional Convention); id. at 154 (“Most Americans agreed that the

solution to ‘competitions and encroachments’ among the states, ‘whether in commerce or territory,’ was to

strengthen the central government.”).

186

See supra note 120.

187

167 U.S. 518, 528 (1897).

188

Id. at 526.

189

Id. at 524.

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of those states in violation of the equal footing doctrine.

190

The implication of

the equal footing argument is that after admission of a state either congressional

power must be limited or public lands should be divested from the federal

government.

191

The argument sometimes builds off a claim that the “dispose”

language of the Property Clause creates a mandatory duty for the federal

government to divest itself of its ownership interests when a state is admitted to

the Union.

192

But divestment of federal land ownership in admitted states would in fact

contradict the role that the federal government is supposed to play under a

horizontal federalism understanding of the Property Clause. In addition, a

horizontal federalism understanding of the Property Clause does not restrict

congressional power to impose differential requirements on states once they

have been admitted to the Union. As noted above, the equal footing doctrine was

rejected as a textual matter by the Constitutional Convention.

193

A weak version

190

See, e.g., Engdahl, supra note 21, at 294; Hardwicke et al., supra note 21, at 419, 431 (stating that “the

framers did not intend that the Federal Government should become a proprietor of revenue-bearing lands within

the states” and calling such ownership a “constitutional monstrosity” that undermines state sovereignty).

191

See, e.g, Patterson, supra note 21, at 47–48; Hardwicke et al., supra note 21, at 419. In the political

arena, these arguments were the basis of the Sagebrush Rebellion of the 1980s, the County Supremacy movement

of the 1990s, and the Land Transfer movement of the 2010s, all of which called for transfer of some or all federal

land to state or local control. For an overview of these movements, see Leshy, supra note 9. For the equal footing

arguments made by counsel for Utah as part of its land transfer claims in the 2010s, see HOWARD ET AL., supra

note 8, at 55–99.

The equal footing arguments can be seen as the foundation for all criticisms of preemptive federal

power under the Property Clause. See Leshy, supra note 9, at 507; Goble, supra note 21, at 497 (“[T]he classic

doctrine thus resolves into an equal footing argument.”). One scholar has explicitly argued that the federal

government can retain property ownership within states without having preemptive power. Schmitt, Limiting the

Property Clause, supra note 21.

192

See, e.g., Natelson, supra note 21, at 350, 363–65. Utah’s claims to ownership of federal lands within

its borders relied in part on claims that the Enabling Act admitting Utah to the Union constituted a promise that

federal lands within Utah would eventually be sold or given away. KOCHAN, A LEGAL OVERVIEW, supra note 8,

at 12–16; HOWARD ET AL., supra note 8, at 99–113; Kochan, “Duty to Dispose,” supra note 8, at 1150–67. The

statutory interpretation claims based on the Utah Enabling Act are thoroughly rebutted elsewhere. See Leshy,

supra note 9, at 553–58. These statutory interpretation arguments require rejecting interpretations of the Clause

that give broad power to the federal and government. Kochan, “Duty to Dispose,” supra note 8, at 1167. They

are also closely related to claims that there is an obligation for the federal government to dispose of its lands

within admitted states because the purpose of the cession of lands to the federal government by the landed

original states in the 1780s and 1790s was to advance the creation of new states. See KOCHAN, A LEGAL

OVERVIEW, supra note 8, at 17–18, 24–27 (relying on a claim about historical expectations around the land

cessions to support Utah’s position, and also noting that the equal footing theory both supports the statutory

interpretation claim as well as providing an additional argument); HOWARD ET AL., supra note 8, at 99–113

(arguing the same); Kochan, “Duty to Dispose,” supra note 8, at 1160–67, 1182–88 (arguing the same). As

discussed earlier, while the land cessions were intended to advance the creation of new states, they were also

intended to advance the role of the federal government as a neutral arbiter among states in managing the lands,

including after states were admitted to the Union.

193

See supra Part II.A.

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of equal footing focused on political rights would be consistent with a horizontal

federalism conception of Article IV, but a broad version is not required by the

text, the historical context of the Property and Admission Clauses, or a

horizontal federalism conception of Article IV. As such, the equal footing theory

neither provides an argument against preemption of state law under the Property

Clause nor requires divestiture of federal land holdings within states.

First, the text of the Property Clause cuts against divestiture. As noted in the

prior section, the text grants Congress the power to both dispose and enact

needful rules and regulations.

194

Implicit divestiture of public lands to newly

admitted states—where the congressional acts admitting the new states

explicitly required those states to disclaim any claims to those federal lands

195

—

would be deeply inconsistent with congressional supremacy under the Clause.

Second, the historical context for the Property and Admission Clauses

outlined in Part II.A makes clear that the purpose of the Property Clause was to

grant the federal government the authority to manage and exercise sovereignty

over the public lands, creating a strong federal role to mediate between the

conflicts among the states over the western land claims. As developed in the

prior section, the federal government was needed as a neutral arbiter for the

public lands even after the admission of the states, both to resolve conflicts and

as the owner or trustee of the lands for the other states.

196

Divestiture of federal

lands within new states would hinder the role that the federal government could

play in managing and controlling the lands on behalf of all states to mediate the

potential for conflict between the states over those lands. The mediating role of

the federal government is important regardless of whether the federal public

lands are within a territory or a state—contestation over land grants existed even

within the original thirteen states.

197

And without preemption, federal power as

mediator and manager of the lands could be undermined by a hostile state

government.

198

Likewise, divestiture would benefit a newly admitted state at the expense of

the other states that had contributed to and supported the efforts to acquire those

lands, undermining the federal government’s role as trustee for all the states.

194

See supra note 69 and accompanying text.

195

Biber, supra note 75, at 130–31 tbl.1.

196

See supra Part III.B.

197

See supra notes 182–85 and accompanying text.

198

See Camfield v. United States, 167 U.S. 518, 526 (1897) (“A different rule would place the public

domain of the United States completely at the mercy of state legislation.”).

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Divestiture would end that mediating role. John Leshy has previously articulated

the point:

[T]here is no credible evidence that the founders intended to put the

national government under any legal obligation to divest itself of

ownership of all the public lands, whether to new states or anyone else.

Indeed, such an objective would have made no sense to the politically

savvy founders. There is no question that they, and the states they

hailed from, regarded these lands as being bought with their “blood

and treasure,” and they expected these lands to be used for the

“common benefit” of the entire nation. Thus, they were very unlikely

to support relinquishing all control over them to new states.

199

Leshy also notes the long history of federal retention of lands within admitted

states from the establishment of the United States to achieve a range of

purposes.

200

At the heart of most of the arguments for divestiture is a claim that the equal

footing doctrine requires divestiture. Despite the rejection of an explicit equal

footing requirement at the Constitutional Convention, the Supreme Court has

articulated an equal footing doctrine—though that doctrine, as described in Part

I, has been limited to a very specific range of issues, including ownership of

submerged lands on the date of statehood and the location of a state’s capital.

201

None of the leading equal footing cases involve the management or divestment

of terrestrial public lands.

202

199

Leshy, supra note 9, at 511; see Goble, supra note 21, at 506 (“The [argument for divestiture] confuses

factual equality (the presence or absence of federal lands) with political equality (the authority of the states over

article IV lands). So long as all states have the same authority over article IV lands within their borders, the

equal footing doctrine is not offended.”); Gaetke, Refuting, supra note 21, at 643.

200

See Leshy, supra note 9, at 518–19. Leshy also notes that arguments that federal lands should be

divested to newly admitted western states was broadly rejected in the first half of the eighteenth century,

including by James Madison. Id. at 523–27. Given the public debates and the settled understanding, one can

plausibly conclude that the constitutional question has been settled. William Baude, Constitutional Liquidation,

71 STAN. L. REV. 1, 13–21 (2019).

201

Coyle v. Smith, 221 U.S. 559, 579 (1911); Pollard v. Hagan, 44 U.S. (3 How.) 212, 230 (1845).

202

See Coyle, 221 U.S. at 562 (discussing the location of the state capital); Shelby County v. Holder, 570

U.S. 529, 534–35 (2013) (discussing the Voting Rights Act). The Supreme Court has held that the equal footing

doctrine requires transfer to a state upon its admission ownership of lands submerged between navigable waters

at the time of admission. Pollard, 44 U.S. at 230. The Court has explicitly rejected extending that reasoning to

dry land. Scott v. Lattig, 227 U.S. 229, 244 (1913); Texas v. Louisiana, 410 U.S. 702, 713 (1973); Arizona v.

California, 373 U.S. 546, 597–98 (1963). The importance of navigation on waterways in a pre-industrial

economy provides a strong basis for special treatment of lands submerged under navigable waterways. For

scholars analyzing the case law and concluding that it does not require divestiture of federal lands within state

borders, see, e.g., Leshy, supra note 9, at 560–61; Leah M. Litman, Inventing Equal Sovereignty, 114 MICH. L.

REV. 1207, 1216–18 (2016). For case law rejecting equal footing challenges to federal land retention, see, e.g.,

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How does a horizontal federalism understanding of Article IV shape our

understanding of the equal footing doctrine?

203

On the one hand, to the extent

Article IV is understood to emphasize an agreement among the states at the

Constitutional Convention as to how to manage interstate relations between the

existing states, Article IV could support a rejection of the equal footing doctrine

as not grounded in the text of the Constitution. This is a vision of Article IV as

an agreement between the existing states at the expense of new states, the vision

of delegates such as Governour Morris.

204

On the other hand, to the extent Article IV is better understood as a

horizontal federalism agreement among all the states—present and future—

rather than an extra-textual equal footing doctrine makes more sense. A key

driver for the development of the Constitution was the resolution of western land

claims in a way that was equitable among the landed and landless states, and in

a way that would also ensure western settlers were loyal to the United States. An

equal footing doctrine would have reduced the risk that some new states would

be subservient to some or all the existing states, and equally situated new states

would be more likely to inspire loyalty by future settlers. Given the drafting

history and historical context of Article IV,

205

some notion of an equal footing

doctrine seems plausible as the alternative, despite the explicit rejection of the

provision in the Convention. In addition, the equality principle for states in the

Senate (entrenched in Article V) would support an equal footing doctrine, albeit

perhaps a narrow one focused on political rights.

206

Finally, the Northwest

Ordinance, enacted in 1787 as the Constitution Convention was just convening

and which provided for governance and eventual statehood of the federal

territories northwest of the Ohio River, guaranteed equal footing for states

Stearns v. Minnesota, 179 U.S. 223, 242–45 (1900) (upholding conditional land grants to states); United States

v. Gardner, 107 F.3d 1314, 1318–19 (9th Cir. 1997).

203

It is important to keep in mind the distinction between the separation-of-powers and federalism

implications of a horizontal federalism understanding of Article IV for the Property Clause. The separation-of-

powers implication of horizontal federalism emphasizes the primacy of Congress in implementing the Clause,

since Congress is a representative of the states. That is distinct, however, from the power of the federal

government vis-à-vis states. Congress, even as a representative of the states, is still a component of the federal

government. Thus, it is entirely consistent to recognize the primacy of Congress under horizontal federalism

while still recognizing a robust federal role under the Clause vis-à-vis the states.

204

See supra notes 83–85 and accompanying text.

205

See supra Parts II.A & II.B.

206

See Zachary Price, NAMUDNO’s Non-Existent Principle of State Equality, 87 N.Y.U. L. REV. ONLINE

24, 27–28 (2014) (noting these provisions); Litman, supra note 202, at 1230. The existence of specific provisions

of the Constitution that mandate state equality might also be taken to imply that other forms of inequality are

not prohibited by the Constitution. Leshy, supra note 9, at 510; Litman, supra note 202, at 1230–32.

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admitted pursuant to its provisions—the framers of the Constitution were surely

aware of the Ordinance, and the first Congress quickly reenacted it.

207

But much of the evidence for an equal footing doctrine also supports a

narrow version of the doctrine—one focused on political rights and sovereignty

rather than a broader vision of economic equality. This latter, broader vision is

the basis for the claim that federal land ownership within states (which is heavily

concentrated in the western United States) is unequal because it diminishes the

power of states with large concentrations of federal land ownership. However,

while the Northwest Ordinance guaranteed equal footing for newly admitted

states, it also required those states to abide by a range of restrictive conditions—

including the protection of religious liberty, the prohibition of slavery, and a

disclaimer of ownership or taxation power over federal lands within their

borders.

208

Almost every congressional statute admitting a new state has

required that state to disclaim ownership of federal lands, respect federal power

over relations with Indian tribes, and abide by a range of additional intrusive

conditions.

209

This history weighs in favor of limiting any equal footing doctrine

to political sovereignty, consistent with existing case law applying the

doctrine.

210

Thus, the Supreme Court has rejected claims that “Congress cannot

207

An Ordinance for the Government of the Territory of the United States North West of the River Ohio,

supra note 76, at 342; An Act to Provide for the Government of the Territory Northwest of the River Ohio, art.

V, ch. 8, 1 Stat. 50, 53 (1789). The Court has drawn on the Northwest Ordinance as evidence of the intent of the

framers. See Reynolds v. Sims, 377 U.S. 533, 573 (1964) (citing the Ordinance as example of the framers

requiring territorial legislatures to be apportioned equally by population, and that equal apportionment is

therefore mandated by the equal protection clause). For scholars drawing on the Ordinance to advance versions

of an equal footing or equal sovereignty doctrine, see Thomas B. Colby, In Defense of the Equal Sovereignty

Principle, 65 DUKE L.J. 1087, 1104–05 (2016) (citing equal footing language in most state admission acts);

Landever, supra note 21, at 563.

208

An Ordinance for the Government of the Territory of the United States North West of the River Ohio,

supra note 76, at 340–43; see also Leshy, supra note 9, at 508–09 (stating the Ordinance’s “understanding of

‘equality’ in its reference to ‘equal footing’ was ‘narrowly defined.’ It referred to political status, and not to other

subjects like economic or resource equality, or equality as respects U.S. landholdings”); Goble, supra note 21,

at 506 n.46 (noting that the equal footing language in Ordinance “seems limited to political instead of economic

equality. [A] view . . . supported by other provisions of the clause that forbid new states from interfering with

the disposition of federal land”); Litman, supra note 202, at 1235–36 (making similar points including Ordinance

restriction on new states being able to allow slavery or religious discrimination).

209

Biber, supra note 75, at 130–31 tbl.1.

210

The Supreme Court stated the following in United States v. Texas, 339 U.S. 707 (1950):

The “equal footing” clause has long been held to refer to political rights and to sovereignty. It

does not, of course, include economic stature or standing. There has never been equality among

the States in that sense. Some States when they entered the Union had within their boundaries

tracts of land belonging to the Federal Government; others were sovereigns of their soil.

Id. at 716 (citations omitted); see also United States v. Gardner, 107 F.3d 1314, 1319 (9th Cir. 1997) (making a

similar point).

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constitutionally withdraw large bodies of land from settlement without the

consent of the state where it is located” and stated that the United States can

“withhold or reserve the land . . . indefinitely.”

211

Nor would this narrow notion of the equal footing doctrine support

restricting the preemptive power of the federal government under the Property

Clause. Federal preemptive power over federal lands does not alter the ability of

a state to enact its own laws that apply on non-federal lands, which is in many

ways the core feature of state sovereignty. And while states with more federal

lands within their borders have more lands that are covered by the potential

preemptive power of the Property Clause, that inequality is replicated in a whole

host of substantive areas where federal power is present. As noted by other

scholars, the fact that New York is a center for the financial industry, such that

federal securities regulation has a heavier preemptive effect in that state, is not

a violation of the equal footing doctrine.

212

Similarly, the fact that a coastal state

has a greater interaction with federally-managed waters and submerged lands is

not a violation of the equal footing doctrine.

213

A separate question is the extent to which the equal footing doctrine should

be expanded into an equal sovereignty doctrine, as articulated by the Supreme

Court in Shelby County v. Holder.

214

The equal footing case law before Shelby

County had exclusively focused on the ability of Congress to use admissions

conditions to constrain state decision-making after admission of the state.

215

Shelby County extended that case law to laws passed under other congressional

power besides the Admissions Clause, legislation applicable to currently

admitted states.

216

The Court overturned a provision of the Voting Rights Act

that required preapproval of changes to voting laws in certain states on the

grounds that the law improperly undermined the equal sovereignty of those

states.

217

Again, a horizontal federalism understanding of Article IV could be

understood as supporting this extension to an equal sovereignty doctrine. One

211

Light v. United States, 220 U.S. 523, 535–36 (1911).

212

Leshy, supra note 9, at 564.

213

See Goble, supra note 21, at 506–07. For a contrary, broad, and unsupportable claim as to the scope of

the equal footing doctrine, see HOWARD ET AL., supra note 8, at 77 (“The Equal Footing Doctrine requires that

each State be admitted on an equal footing with the original thirteen in every way.”).

214

Shelby County v. Holder, 570 U.S. 529, 544 (2013). Legal counsel for Utah has argued that the equal

sovereignty doctrine also supports divestiture of federal lands to admitted states, though the argument is

essentially the same as an equal footing claim. HOWARD ET AL., supra note 8, at 55–72.

215

See Biber, supra note 75, at 175–84.

216

Shelby County, 570 U.S. at 545–50.

217

Id. at 544–45.

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could build on the debates during the drafting and ratification of the Constitution

about the need to ensure that western states would not be subordinate to the

original states and argue this history implies that the original states (and so all

states, newly admitted or not) should be treated as equals.

218

However, the

horizontal federalism of Article IV also recognizes the role of Congress as the

representative of states and the ability of states to use their equal representation

in the Senate to protect their interests.

219

Territories or other entities seeking admission by Congress—a decision

purely in the discretion of the states currently in the Union—do not have the

protection of congressional representation available to them. To protect these

more vulnerable entities, an equal footing doctrine prevents Congress from using

its Admissions Clause powers to extend congressional powers beyond what

Congress has vis-à-vis current states. Indeed, all the existing equal footing cases

can be understood as limiting the power of Congress to leverage its Admissions

Clause to impose permanent constraints on the political power of new states.

220

For instance, Coyle v. Smith

221

involved an admissions act that constrained a

state’s ability to move its capital, which the Court held was an “essential and

peculiarly state power[]”

222

—a power that would not otherwise be within

Congress’s control. Bolln v. Nebraska

223

rejected an argument that a state

enabling act provision required the state to adopt the Bill of Rights into the state

constitution because Congress had no power to require any state to incorporate

the Bill of Rights.

Finally, there are cases that have held that admissions act provisions that

required newly admitted states to keep navigable waterways as “common

highways and forever free” without any tax did not prevent states from

218

The state-to-state relationships implicit in the horizontal federalism of Article IV could be analogized

to international law, which some scholars have argued implies equality among the states. Colby, supra note 207,

at 1139–40. However, international legal scholars influential in the Founding period, such as Vattel, emphasized

the possibility of sovereign states with greatly variable levels of power and sovereignty vis-à-vis each other,

even if they had formal equality in the international legal system. See Seth Davis, Eric Biber & Elena Kempf,

Persisting Sovereignties, U. PA. L. REV. (forthcoming 2022) (on file with author) (describing the concept of

dependent sovereignty in international law); see also Litman, supra note 202, at 1240–41 (noting the issue).

219

Price, supra note 206, at 27 (“While it is conceivable that a majority of states in Congress could

routinely gang up on a single state or a minority group of states, the Constitution provides states with substantial

means of political self-defense.”); Litman, supra note 202, at 1265–66.

220

See Litman, supra note 202, at 1211, 1220–21, 1225–28 (stating that state admissions cases use equal

sovereignty to develop two limits on Congress’s power to admit states: “(1) Congress may only impose laws . . .

that fall within its delegated powers, and (2) Congress may not enact laws . . . that interfere with spheres in which

the states are sovereign or autonomous”).

221

221 U.S. 559 (1911).

222

Id. at 565.

223

176 U.S. 83, 87–88, 90–91 (1900).

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constructing bridges that obstructed free navigation where there was no separate

congressional law prohibiting bridge construction.

224

Some of these cases

analyze the relevant admission act language narrowly,

225

while others use

broader language about state equality.

226

However, they all build on a nineteenth

century principle of constitutional law that states had primary authority over

bridge and canal construction unless Congress acted as a default standard of

constitutional power. As such, the Court can be perceived as reluctant to

conclude that Congress used its admissions power to leverage a permanent

restriction on one state’s authority in bridge and canal construction, rather than

finding Congress unable to restrict a state’s authority relative to other states.

227

A broader version of the equal footing or equal sovereignty doctrine that

expands beyond restricting congressional leverage of Admissions Clause

powers is, therefore, neither required by a horizontal federalism understanding

of Article IV nor supported by the relevant case law.

228

IV. E

XTENSIONS

The analysis in this Article has focused on how a horizontal federalism

understanding of Article IV can shape our interpretation and application of the

Property Clause. But there are additional interpretive problems specific to the

Property Clause that a horizontal federalism understanding of Article IV might

help resolve. This Part tentatively addresses two: (1) the application of the

Appointments Clause to federal officials under Article IV, and (2) the power of

Congress to use non-Article III courts to resolve disputes under Article IV. In

both situations, a horizontal federalism understanding of Article IV indicates

that Congress may have greater powers to structure both the Executive and

Judicial Branches in the context of Article IV than it might have otherwise.

224

Colby, supra note 207, at 1106–08, 1113–14, 1118–22 (citation omitted) (the leading scholarly article

on the topic). For the case law on the topic, see generally Escanaba v. City of Chicago, 107 U.S. 678 (1883);

Withers v. Buckley, 61 U.S. 84 (1857); Cardwell v. Am. River Bridge Co., 113 U.S. 205 (1885); Willamette Iron

Bridge Co. v. Hatch, 125 U.S. 1 (1888).

225

See, e.g., Cardwell, 113 U.S. at 212.

226

See, e.g., Escanaba, 107 U.S. at 688–89.

227

Language in some of the case law can be understood broadly, with strong wording about the essential

nature of equality across all states. Colby, supra note 207, at 1106–08, 1113–14, 1118–22. A horizontal

federalism version of Article IV would be skeptical of this broad interpretation of the case law.

228

Contra HOWARD ET AL., supra note 8, at 122–23 (arguing that the placement of the Property Clause in

Article IV implies that Congress has limited powers under the Clause and that there cannot be long-term federal

land ownership under the Clause within an admitted state). As noted above, while a horizontal federalism

understanding of Article IV might emphasize congressional power vis-à-vis the Executive, it does not minimize

federal power where it is granted by the text. Indeed, a horizontal federalism conception of Article would

emphasize the power that Congress has as representative of the states.

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A. The Appointments Clause

The question of how the Appointments Clause applies to federal officials

exercising Article IV powers recently arose in the Supreme Court’s

consideration of a challenge to the composition of the fiscal review board that

Congress created to address the Puerto Rican debt crisis.

229

The board was

composed of members appointed by the President without Senate confirmation,

in tension with the Appointments Clause requirement that “Officers of the

United States” be presidentially nominated and Senate confirmed. Because

Puerto Rico is a territory rather than a state, Congress can exercise broad powers

with respect to Puerto Rico under the Property Clause.

230

The Court upheld the

method of appointing members of the fiscal review board on the grounds that

the Appointments Clause does not apply to territorial officials who deal

primarily with “local” issues, as opposed to “national” issues. The Court

reasoned that even though the Appointments Clause does apply to Article IV,

Article IV officials who address “local” issues are not officers of the United

States who require presidential appointment and Senate confirmation.

231

Instead,

they constitute “inferior Officers” who can be appointed solely by the President,

as provided for by the Appointments Clause.

Here, the Court perhaps reached the right result through incorrect reasoning.

As Justice Thomas noted in his concurrence, the border between “local” and

“national” is not based in any text of the Constitution, nor is it one that is easily

applied in the context of federal lands or territories.

232

For instance, the fiscal

review board was authorized to participate in bankruptcy proceedings in federal

court, arguably a “national” question. The better approach, as Justice Thomas

noted, may be to recognize that Article IV provides a different framework for

considering these kinds of structural questions and authorizes different

approaches to appointment of territorial officials.

233

229

Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., 140 S. Ct. 1649 (2020).

230

See U.S. CONST. art. IV, § 3, cl. 2 (“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.”).

231

Fin. Oversight Bd., 140 S. Ct. at 1651.

232

See id. at 1671 (Thomas, J., concurring). The Court noted, in considering a case about the relative

powers of the U.S. Attorney General (appointed by the President) as opposed to the Territorial Attorney General

(appointed by the territorial governor), that “[s]trictly speaking, there is no sovereignty in a Territory of the

United States but that of the United States itself. Crimes committed therein are committed against the

government and dignity of the United States.” Snow v. United States, 85 U.S. 317, 321 (1873).

233

Fin. Oversight Bd., 140 S. Ct. at 1671 (Thomas, J., concurring) (noting that the key question is whether

Board “perform[s] ongoing statutory duties under only Article IV”). Thomas’s opinion is ambiguous as to

whether he would limit his principle simply to officials acting under the Property Clause governing territories

or to officials acting under any Article IV power. Giving Congress this kind of leeway will not necessarily result

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Recognizing a different framework for territorial governance is all the more

important because the workaround developed by the Court in the Puerto Rican

fiscal review board case—categorizing territorial officials as “inferior Officers”

who do not require Senate confirmation—still leaves fundamental constitutional

problems for the management of territories. Self-governing U.S. territories have

territorial officials who are elected by the voters of those territories—members

of territorial legislatures and governors.

234

Even if these officials are considered

“inferior Officers,” the Constitution only allows them to be appointed by the

President, the courts, or the “Heads of Departments.”

235

None of those categories

cover elected officials. Thus, application of the Appointments Clause to

territorial elected officials might wipe out self-governance for the territories.

236

Such a result is not just normatively undesirable—it is also inconsistent with

long historical practice. The Northwest Ordinance provided for election of

territorial legislatures once certain population thresholds had been met.

237

The

framers were very aware of the Northwest Ordinance at the time of the framing

and reenacted it quickly after adoption of the Constitution—including the

provisions for elected territorial legislatures.

238

Congress repeatedly continued

to provide for elected territorial legislatures over the history of territorial

governance in the United States, and generally expanded the powers of these

legislatures over time.

239

A horizontal federalism understanding of Article IV—one that emphasizes

congressional power to control governance relationships in federal territories

and public lands—would similarly support such self-governance arrangements,

in legislative aggrandizement at the expense of the President—in the PROMESA case, the fiscal review board

was appointed by the President without Senate approval. Id. at 1654.

234

See LAWSON & SEIDMAN, supra note 22, at 132–33; JACK ERICSON EBLEN, THE FIRST AND SECOND

UNITED STATES EMPIRES: GOVERNORS AND TERRITORIAL GOVERNMENT 1784-1912, at 157–58, 166–69 (1968).

235

U.S. CONST. art. II, § 2.

236

For scholars noting this potential outcome and attempting to articulate work-around mechanisms that

would allow for territorial elected officials and legislatures consistent with the Appointments Clause, see

LAWSON & SEIDMAN, supra note 22, at 133–38.

237

See Ordinance for the Government of the Territory of the United States North West of the River Ohio,

supra note 76, at 335–38.

238

An Act to Provide for the Government of the Territory Northwest of the River Ohio, art. V, ch. 8, 1

Stat. 50, 53 (1789); see also Fin. Oversight Bd., 140 S. Ct. at 1668–69 (Thomas, J., concurring) (emphasizing

this history and the importance of the reenactment of the Northwest Ordinance by the First Congress).

239

See Clinton v. Englebrecht, 80 U.S. 434, 441 (1871) (providing an overview of the history); Onuf,

Territories and Statehood, supra note 71, at 1290–92 (noting how Congress provided for increasing self-

government in territories as European-American population increased); EBLEN, supra note 234, at 52–86, 138–

170; id. at 205 (noting an increased dominance of territorial legislatures with respect to governors as the

nineteenth century proceeded). Early in the history of the territories, “[g]ubernatorial rule proved to be

ideologically suspect and administratively disastrous.” Onuf, Territories and Statehood, supra note 71, at 1297.

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should Congress seek to pursue them. Due to congressional primacy in Article

IV, Congress has leeway to manage and govern the territories and public lands

as the representative of the states. This leeway exists even if such governance

requires alternative appointment mechanisms other than those identified in the

Appointments Clause.

B. The Courts

Similarly, congressional primacy in the context of Article IV would support

giving Congress greater leeway in determining the structure of the courts in the

context of territories and federal public lands, and even authorize alternative

methods dispute resolution beyond Article III courts. Again, this is consistent

with historical practice.

In the context of territorial governments, the Supreme Court has long upheld

the use of non-Article III courts where judges are appointed by territorial

governors without Senate confirmation or lifetime tenure—including the

resolution of disputes that might otherwise be heard by an Article III court.

240

While the Court has given various justifications for this approach—including

the temporary nature of territorial governments requiring flexibility in

staffing,

241

the fact that Congress stands in the shoes of a state government with

respect to territories,

242

and unspecified “practical considerations”

243

—this

congressional power over the courts is consistent with a horizontal federalism

perspective of congressional primacy in Article IV.

Likewise, in the context of structuring dispute resolution with respect to

federal public lands, as with territories, the courts have upheld the use of non-

Article III courts to resolve disputes over land ownership or claims of who

240

See, e.g., Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 546 (1828); Benner v. Porter, 50 U.S. 235,

245 (1850) (holding that territorial courts need not be Article III courts, but once a territory is admitted as a state,

its federal courts must be organized under Article III); Gov’t of the Canal Zone v. Scott, 502 F.2d 566, 570–71

(5th Cir. 1974); O’Donoghue v. United States, 289 U.S. 516, 535 (1933); Balzac v. People of Porto Rico, 258

U.S. 298, 312 (1922); Ex parte Bakelite Corp., 279 U.S. 438, 458–59 (1929); N. Pipeline Const. Co. v. Marathon

Pipe Line Co., 458 U.S. 50, 64 (1982); see also STORY, supra note 71, at 597 (§ 1325); LAWSON & SEIDMAN,

supra note 22, at 146–50 (noting case law and its current relevance, and arguing the case law is wrongly decided);

cf. Palmore v. United States, 411 U.S. 389, 419–20 (1973) (upholding non-Article III courts in Washington,

D.C. under the District Clause, art. I, § 8, cl. 17, and explicitly connecting them to congressional power under

the Property Clause). For the proposition that these courts can hear cases within the scope of Article III, see

Clinton, 80 U.S. at 447; Glidden Co. v. Zdanok, 370 U.S. 530, 545 (1962).

241

O’Donoghue, 289 U.S. at 536 (“A sufficient foundation for these decisions in respect of the territorial

courts is to be found in the transitory character of the territorial governments.”); Glidden, 370 U.S. at 545–46.

242

N. Pipeline Const., 458 U.S. at 64.

243

Palmore, 411 U.S. at 403–04.

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should receive federal public lands.

244

Congress has delegated this work on

occasion to agencies, territorial governors, specially convened commissions, and

non-Article III territorial courts.

245

Congressional power under Article IV over dispute resolution does not,

however, mean that there is no role for courts—at least, so long as Congress has

provided for judicial review.

246

It is true that in the first half of the nineteenth

century, federal courts took a very hands-off approach to lawsuits against

executive officials who implemented the public lands laws,

247

but this is not due

to any reluctance by courts to hear claims in the public lands context,

specifically. Instead, it reflects congressional statutes that did not explicitly

allow for judicial review of agency decisions, nineteenth century limitations on

the remedies available in lawsuits against the government, and the opportunity

for dissatisfied parties to seek relief through Congress, which often passed

legislation to resolve disputes between claimants and the federal government.

248

244

See, e.g., Standard Oil Co. of Cal. v. United States, 107 F.2d 402, 409–10 (9th Cir. 1939); Grisar v.

McDowell, 73 U.S. 363, 379 (1867); Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 284

(1855); Williams v. United States, 289 U.S. 553, 565 (1933).

245

See GREGORY ABLAVSKY, FEDERAL GROUND: GOVERNING PROPERTY AND VIOLENCE IN THE FIRST

U.S. TERRITORIES 203 (Paul Brand et al. eds., 2021) (noting the use of commissions to resolve land claims

disputes in the early republic); LESHY, supra note 71, at 31–40; id. at 62–72 (noting a commission created by

Congress to resolve lead land lease claims in Missouri); MASHAW, supra note 110, at 88 (noting that in 1829

there was “a system of administrative land claims commissioners whose adjudicatory output rivaled that of the

judiciary”); id. at 123 (stating the creation of administrative processes in the 1790s was a response to the

conclusion that “territorial courts could not make decisions on all of these [foreign land] claims”); id. at 128–29

(describing overall history); id. at 254–56 (noting large scale administrative review in public land context in late

nineteenth century); WHITE, supra note 131, at 516–18 (noting the large administrative process for adjudicating

land claims in early nineteenth century, with broad discretion given to the agencies); ROHRBOUGH, supra note

29, at 33–36 (noting that in 1803 Republicans started to create a Board of Commissions to resolve foreign and

other title claims in Louisiana and other territories).

246

U.S. CONST. amends. V, XIV. In addition, other provisions of the Constitution, such as the Due Process

Clause under the Fifth and Fourteenth Amendments, might require judicial review of certain kinds of disputes.

247

MASHAW, supra note 110, at 245; Ann Woolhandler, Judicial Deference to Administrative Action—A

Revisionist History, 43 ADMIN. L. REV. 197, 216–17 (1991). Ann Woolhandler argues that in the public lands

context, this was driven in part by a desire to avoid undermining reliance interests and stability in land title. Id.

at 234 (“The Court’s deference to long-standing constructions of statutes by the executive seems to have been

similarly influenced by the need for reliability in land patents to avoid obstructions on the sale and use of land.”);

see also Wright v. Rosenberry, 121 U.S. 488, 500–01 (1887) (rejecting challenges to factual decisions by the

land office and noting that the patent granting land should be “conclusive as against any collateral attacks[,] . . .

an invaluable muniment of title, and a source of quiet and peace to its possessor”).

248

MASHAW, supra note 110, at 136–37; Woolhandler, supra note 247, at 235, 235 n.192 (noting the lack

of explicit statutory review provisions in land patent statutes may have encouraged less searching judicial review

in that context, compared to invention patents where the statutes did have review provisions); see also United

States v. Arredondo, 31 U.S. 691, 711, 729 (1832) (denying to hear dispute over a Spanish land grant because

Congress had not provided for judicial review); Astiazaran v. Santa Rita Land & Mining Co., 148 U.S. 80, 81–

82 (1893) (“[T]he duty of providing the mode of securing these rights and of fulfilling the obligations imposed

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Indeed, once courts took different attitudes towards the possibility of relief

against the federal government, courts began to seriously review agency

interpretations of public lands statutes and overturned those interpretations

where they were unwarranted.

249

Accordingly, while others have argued that there is no room for judicial

review of executive branch implementation of Property Clause powers because

of the “proprietary” nature of the clause,

250

such arguments are inconsistent with

historical practice and undermine the horizontal federalism of Article IV by

preventing Congress from establishing enforcement mechanisms for executive

compliance with congressional enactments

ONCLUSION

Article IV can be understood as an important Article on its own in our

constitutional structure—one focused on horizontal federalism or building state-

to-state relationships to create a stronger Union. This understanding of Article

IV helps resolve thorny disputes over the Property Clause, perhaps the most

important Clause within the Article. It more clearly delineates the border

between congressional and executive power in implementing the Clause,

upon the United States by the treaties belonged to the political department of the government; and congress

might either itself discharge that duty, or delegate it to the judicial department.”).

249

See Woolhandler, supra note 247, at 219–20 (describing the expansion of judicial review of public land

decisions); see also Wright, 121 U.S. at 519–20 (holding that jurisdictional challenges to land office decisions

can include claims that the land office had no power to transfer property to an adverse claimant). For examples

of judicial rejection of agency legal interpretations in the public lands context, see Lindsey v. Hawes, 67 U.S.

554, 562–63 (1862); United States v. Union Pac. Ry. Co., 148 U.S. 562, 569 (1893); Dubuque & Pac. R.R. Co.

v. Litchfield, 64 U.S. 66, 89 (1859); Hewitt v. Schultz, 180 U.S. 139, 156 (1901) (“Of course, if the ruling of [the

land office] was plainly erroneous, it would be the duty of the court to give effect to the will of Congress . . . .”);

Burfenning v. Chi., St. Paul, Minneapolis & Omaha Ry. Co., 163 U.S. 321, 323 (1896); MASHAW, supra note

110, at 246–48 (arguing it was in public lands that the first development of modern judicial review of agency

decision-making occurred); Scalia, supra note 114, at 884 (stating “by the end of the century [public lands

litigation against the federal government] attained what might today be termed habeas corpus proportions”); id.

at 890 (by turn of the twentieth century “there had been hundreds of cases in the federal courts seeking mandamus

or injunction against land-office officials”). Courts generally did not review fact-finding by public land agencies

in the nineteenth century. See, e.g., Standard Oil, 107 F.2d at 410–11; Barden v. N. Pac. R.R. Co., 154 U.S. 288,

326–27 (1894); Gardner v. Bonestell, 180 U.S. 362, 369–70 (1901); Johnson v. Drew, 171 U.S. 93, 99 (1898);

Burfenning, 163 U.S. at 323. For an exception, see Lindsey, 67 U.S. at 558. And even for judicial review of

agency legal interpretations, there was often judicial deference, particularly when the agency interpretation was

longstanding. See, e.g., Kansas City, Lawrence & S. Kan. R.R. Co. v. Brewster, 118 U.S. 682, 687, 695 (1886);

United States v. Lytle, 26 F. Cas. 1037, 1039–40 (C.C.D. Ohio 1849).

250

See Sorenson, supra note 22, at 801 (arguing that the proprietary nature of land management excludes

judicial review of public land decisions). Sorensen’s conclusion is in tension with hundreds of court decisions

overturning executive branch decisions regarding public lands. For an example of a case overturning a federal

executive decision, see Fund for Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003).

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highlighting the importance of protecting congressional primacy in determining

whether to dispose of federal property. This understanding provides a strong

constitutional foundation for federal preemption of state law and strong

constitutional arguments against divestment of federal land ownership within

new states. It also helps articulate why, even if Congress must admit new states

on an equal footing with existing states, Congress is not required to treat states

equally after they have been admitted.

This Article focused on the implications of a horizontal federalism

understanding of Article IV for the Property Clause. But a horizontal federalism

understanding could provide insights into interpreting other clauses in Article

IV as well. For instance, there have long been disputes about whether the

Guarantee Clause, in which the United States “shall guarantee to every State . . .

a Republican form of government,” protects individual rights or addresses the

structure of a state’s government, and about whether the Clause is judicially

enforceable.

251

A horizontal federalism perspective might emphasize

congressional primacy in resolving interstate disputes, and it might also

emphasize the role of the Guarantee Clause as a key component of advancing

interstate comity, which might lean towards interpreting the Clause as focused

on governmental structure. Alternatively, interstate comity might also be

advanced by protecting the rights of individuals across state lines, regardless of

where they move or live. Providing more detailed analysis on this question and

other questions related to other sections of Article IV is a promising line of

inquiry for future research.

251

U.S. CONST. art. IV, § 4. Compare Anya J. Stein, The Guarantee Clause in the States: Structural

Protections for Minority Rights and Necessary Limits on the Initiative Power, 37 HASTINGS CONST. L.Q. 343,

344–46 (2010) (arguing for judicial enforcement of individual rights pursuant to the Guarantee Clause), and

Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable, 65 U. COLO. L. REV. 849, 868

(1994) (arguing the same), with Williams, supra note 23, at 677–79 (arguing no judicial capacity to enforce

individual rights), and Ann Althouse, Time for the Federal Courts to Enforce the Guarantee Clause?—A

Response to Professor Chemerinsky, 65 U. COLO. L. REV. 881, 881–83 (1994) (arguing the same).