Congress has overlooked a powerful tool for regulating within state jurisdictions: the Property Clause of the United States Constitution. The United States Government owns land in every state and approximately thirty percent of the total land in the United States. The federal government's authority to regulate its property within states derives from the Property Clause and has been described by the Supreme Court as "without limitation."
Professor Appel traces the historical development of the Constitution's Property Clause, from its pre-constitutional origins through modern Supreme Court decisions and academic conceptions. Professor Appel compares the narrow view of Property Clause scholarship - that the federal government is vested only with the powers of an ordinary proprietor - with the broader view - that the federal government is both proprietor and sovereign over its property. Appel concludes that both history and Supreme Court precedent support the broader view, yet its implications go unrealized by Congress and most constitutional scholars.
The Article goes on to suggest that the federal government's jurisdiction over extraterritorial matters should be viewed by anaology to the Commerce Clause, while federal action over its own property and activities thereon is most analogous to Congress's spending power. The Article suggests that, although the federal government's ability to regulate intrastate activities has recently been curtailed in Commerce Clause jurisprudence, the expansive - and often ignored - Property Clause could empower Congress where the Commerce Clause fails to provide such foundation. The Article contends that application of the reformulated view of the Property Clause would vest in the government broad authority to regulate its property in direct contravention of state law.
This Article concludes that the broad authority conferred by the Property Clause could furnish an alternative basis for federal authority over environmental regulations.
Peter A. Appel,
The Power of Congress "Without Limitation": The Property Clause and Federal Regulation of Private Property
Available at: http://digitalcommons.law.uga.edu/fac_artchop/785