Constitutional Authority Statement for H.R. 687
(House of Representatives - February 14, 2013)

Text of this article available as:

Formatting necessary for an accurate reading of this text may be shown by tags (e.g., <DELETED> or <BOLD>) or may be missing from this TXT display. For complete and accurate display of this text, see the PDF.

        


[Pages H547-H548]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

           By Mr. GOSAR:
       H.R. 687.
       Congress has the power to enact this legislation pursuant 
     to the following:
       Article IV of the Constitution provides the authority of 
     Congress over federal property as a general matter. Article 
     IV, Sec. 3 refers to the managerial authority over property 
     owned by the Federal Government, and provides in relevant 
     part:
       The Congress shall have Power to dispose of and make all 
     needful Rules and Regulations respecting the Territory or 
     other Property belonging to the United States; . . .
       By virtue of this enumerated power, Congress has governing 
     authority over the lands, territories, or other property of 
     the United States--and with this authority Congress is vested 
     with the power accredited to all owners in fee, the power to 
     sell, lease, dispose,

[[Page H548]]

     exchange, transfer, trade, mine, or simply preserve land. The 
     appropriate acreage to be held under Federal dominance is not 
     the subject of this bill. Turning to the power of Article IV, 
     Sec. 3, the Supreme Court has described this enumerated grant 
     as one ``without limitation'' Kleppe v. New Mexico, 426 U.S. 
     529, 542-543 (1976) (``And while the furthest reaches of the 
     power granted by the Property Clause have not yet been 
     definitively resolved, we have repeatedly observed that 
     `[t]he power over the public land thus entrusted to Congress 
     is without limitations' '' Citing United States v. San 
     Francisco, 310 U.S. 29. The Court in Kleppe further explained 
     that ``In short, Congress exercises the powers both of a 
     proprietor and of a legislature over the public domain.'' Id. 
     Like any ``propiretor'' Congress has the power to sell or 
     exchange federal property.
       It is now generally accepted that the Federal Government 
     may own and manage property in the manner and form mandated 
     by Congress. United States v. Gratiot, 39 U.S. 526 (1840); 
     Camfield v. United States, 167 U.S. 518 (1897). However, the 
     wisdom of the Federal Government owning large tracts of land, 
     particularly in the Western States, is subject to question on 
     policy grounds, and some contend on Constitutional grounds 
     based on the decision in Pollard's Lessee v. Hagan, 44 U.S. 
     212 (where the Court stated that ``a proper examination of 
     this subject will show that the United States never held any 
     municipal sovereignty, jurisdiction, or right of soil in and 
     to the territory of which Alabama or any of the new States 
     were formed, except for temporary purposes . . . .'' 
     Historically, the early federal government transferred 
     ownership of federal property to either private ownership or 
     to state ownership in order to pay off the then crushing 
     Revolutionary War debts and to assist with the development of 
     infrastructure. These are still acceptable goals for federal 
     property sale or transfer.
       The land exchange here is one that comports with good 
     policy and constitutional strictures since by exchanging the 
     land set forth in this bill, a large commercial grade copper 
     mine will be able to proceed with the attendant economic 
     benefits with which such a proposition inures (assuming 
     compliance with other requirements set forth in the bill), 
     but the Federal Government also gains equally valuable land 
     that has significance for other purposes.
       Article 1, Sec. 8, Cl. 17 addresses property ceded by a 
     state and conveys exclusive regulatory federal jurisdiction 
     over these federal properties and enclaves. Section 8, Cl, 17 
     may also provide some guidance here to the extent it grants 
     Congress the power to ``exercise like Authority over all 
     Places purchased by the Consent of the Legislature of the 
     State in which the Same shall be, for the Erection of Forts, 
     Magazines, Arsenals, dock-Yards and other needful 
     Buildings.'' But it is Article IV that this bill is grounded 
     upon.