The Constitution is very clear on the power to own national land. It’s the Property Clause: Article IV, Section 3, Clause 2. Article I’s mention of enclaves doesn’t override Article IV. The Constitution doesn’t work that way—you have to read the whole thing from beginning to end.
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CWP: The KrisAnne Halls and the Alex Joneses of the world like to point to something different: the Enclave Clause in the Constitution (Article I, Section 18, Clause 17). That’s the one that mentions “forts, magazines, arsenals, dockyards, other needful buildings” as proof that the federal government cannot own other land other than these enclaves. Has that, I assume, been litigated at some point? Or is that not even relevant?
Professor Squillace: I don’t see how that’s relevant. Again, you can’t just look at the Enclave Clause in isolation when you have a separate important clause that specifically grants to the Congress the authority to manage public lands.
As I noted, the Supreme Court has passed on the property clause on numerous occasions and has been quite explicit about the breadth of federal authority over public lands. There has been no indication whatsoever on any of these decisions that somehow the federal government’s authority over the public lands is somehow compromised or limited by the Enclave Clause. Quite the contrary.
Probably the most famous of these decisions, or at least recent decisions, is United States vs. New Mexico, in which the Supreme Court made clear that the government’s power over public lands is essentially without limitations.
CWP: So then by that notion, any Tenth Amendment arguments — that any powers not granted explicitly in the Constitution fall to the states — the Tenth Amendment does not come into play because you have the Article IV Property Clause.
Professor Squillace: That’s correct.