Emory Law Journal


Eric Biber


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 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.

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