The Power of Congress "Without Limitation" in the Twenty-First Century

24 Pub. Land & Resources L. Rev. 25 (2004).


In this article, I would like to accomplish two goals. First, I would like to retrace briefly the historical background of the Property Clause, and what led to my conclusions about it. Then, I would like to look at what implications my arguments have for public lands administration and for future scholarship. Two implications occur to me immediately in considering the governance of public property. First, I claim that congressional power under the Property Clause is very broad. What implications does this have for the management of public lands, and specifically, public property in light of the events of September 11, 2001 and the war on terrorism? Could new restrictive legislation flow from my earlier views? Second, the power granted in the Property Clause is a power granted to Congress, not to the President. Nevertheless, the Executive Branch obviously plays a great role in setting land management policies for federally owned property. Can troubling problems stem from this arrangement and the potential for the Executive Branch to overreach? Finally, in a radical twist from these two public policy issues, I would like to examine on the periphery an academic question and propose a scholarly agenda for the academic community. One of the underlying issues that arises in Property Clause cases is the treatment of disadvantaged groups. Interpretations of the Property Clause have hurt-in no particular order-African Americans, Indians, Mormons, and members of old economies, and there seems to be at least a small correlation between fights over public property and fights for the rights of otherwise disadvantaged groups. I will present the evidence that I have assembled, and I hope that I might inspire others to join me in exploring the nuances of these battles.