Our American Constitution

The American Lands Council is a Utah-based organization that argues that the federal government should transfer part of its massive land holdings to the states. In recent weeks, apologists for federal land ownership have been savaging the American Lands Council and its leader, Utah Rep. Ken Ivory, in the Utah press.

I don’t agree with every position the American Lands Council takes, but they have a reasonable legal case. I wrote the following in the Salt Lake Tribune to defend Rep. Ivory and the Council against certain politically-motivated charges:
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The American Lands Council and its leader, Utah Rep. Ken Ivory, argue that the federal government is illegally retaining vast tracts of Western lands, some of which should be conveyed to the states.

This is not a new position, but it is making new progress in American state legislatures. It also is drawing the charge that it has “no legal foundation.”

The truth, however, is that Ivory’s position is grounded much more firmly than critics admit.

There are at least three legal bases for concluding that the federal government is obligated to dispose of surplus acreage:

• The original meaning of the Constitution—the meaning attached to it by the Founders—largely supports this view.
• Some of the congressional laws creating Western states (“organic acts”) strongly imply that the federal government has the duty to dispose of excess land.
• To the extent that some of those laws suggest otherwise, they may be constitutionally defective.

Critics point to court cases that assume the federal government may own any land it wants to. But critics should be cautious about relying on those cases. They were sparsely reasoned and therefore are subject to ready judicial re-examination. Moreover, they were decided before the Supreme Court’s renewed interest in the original meaning of the Constitution’s text.

Significantly, that text does not grant the federal government an open-ended, unconditional power to own land. It grants an unconditional power to dispose, but merely conditional and limited authority to retain or acquire.

I first examined the meaning behind this text in a 2005 study published by the University of Colorado Law Review. I learned that the Founders intended the federal government to enjoy more power to own real estate than some right-wing activists admit. But I also learned that the Constitution conveyed to the federal government a good deal less power than Ivory’s critics claim. Essentially, the Constitution, as originally understood, grants the federal government authority to own land for purposes enumerated in the document, but requires the government to dispose of the remainder.

The Supreme Court should have the opportunity to analyze the original meaning of these provisions in the same way it has analyzed provisions applying to federal elections, habeas corpus, guns, and other issues. Perhaps Ken Ivory will give the Court that opportunity.

Another legal basis for Ivory’s position arises from the organic acts of states containing large federal holdings. Those laws support his view when read in light of prevailing rules of judicial interpretation and historical and legal context.

To illustrate: Each organic act grants the state a share of proceeds from federal land sales. From share-of-proceeds terms, courts commonly infer an obligation to maximize proceeds—in this case, a duty to maximize sales. Similarly, each organic act provides that the state disclaims title to federal lands. Although critics claim those disclaimers allow the federal government to retain lands, the disclaimers’ actual purpose was to clear title for sale. The states can legitimately contend that if the federal government sabotages the agreed purpose of the disclaimers, then the states may withdraw them.

Some state organic acts do have terms suggesting the federal government may retain land permanently, but for several reasons those terms may be constitutionally defective.

For example: The Supreme Court voids federal laws (including organic acts) that interfere too much with a state’s core sovereignty. Control over land within state boundaries always has been part of core state sovereignty.

Admittedly, the mere fact that the federal government owns some property within a state does not necessarily violate that state’s core sovereignty. But how far does this rule go?

Washington, D.C. does not claim merely title to the land it owns, but vast sovereign-style authority over it as well. Presumably, therefore, it would be unconstitutional for the feds to own and exercise that kind of authority over all of a state’s territory. But what if they own and control half the state’s land, as in Idaho? Two-thirds, as in Utah? Over 80 percent, as in Nevada?

These are serious and legitimate questions, and Rep. Ivory is performing a public service by raising them.