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ArtIV.S3.C2.1 The Property Clause Generally

Article IV, Section 3, Clause 2:

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; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section 3, Clause 2 of Article IV empowers Congress to dispose of and regulate constitutionally acquired federal property.1 The Supreme Court has explained that “[t]he occasion for the grant was the obvious necessity of making provision for the government of the vast territory acquired by the United States.” 2 The Supreme Court continued “[t]he grant was made in broad terms, and the power of regulation and disposition was not confined to territory, but extended to ‘other property belonging to the United States,’ so that the power may be applied . . . ‘to the due regulation of all other personal and real property rightfully belonging to the United States.’” 3

The Constitution does not address how the government may exercise this power, but the Supreme Court historically has described Congress’s authority under the Property Clause as “plenary” 4 and “without limitations.” 5 The Court has summarized Congress’ authority, stating:

With respect to the public domain, the Constitution vests in Congress the power of disposition and of making all needful rules and regulations. That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property, or any part of it, and to designate the persons to whom the transfer shall be made. No State legislation can interfere with this right or embarrass its exercise; and to prevent the possibility of any attempted interference with it . . . .6

Consequently, the Court has generally been deferential to congressional uses of Property Clause authority. In the 1840 decision United States v. Gratiot,7 for instance, the Supreme Court interpreted the Property Clause as applying to a lease of a lead mine on government land. The defendants in that case argued that the phrase “dispose of” should be interpreted narrowly to apply to the sale, but not the leasing of property, and that, therefore, Congress lacks the power “to give or authorize leases of the public lands.” 8 In upholding the lease, the Court rejected such a narrow interpretation, stating that “disposal must be left to the discretion of Congress.” 9 Nearly a century later, the Court similarly rejected a narrow interpretation of the Property Clause in a challenge over a statutorily authorized contract through which the federal agency, the Tennessee Value Authority, agreed to purchase power lines and real property for the construction of a dam. In that case, the Court held that the Clause extended to the disposal of potential electrical energy made available by the construction of a dam, as well as the transmission lines and other equipment necessary to generate the energy.10

Kleppe v. New Mexico, 426 U.S. 529, 537–38 (1976); Kansas v. Colorado, 206 U.S. 46, 89 (1907); see Camfield v. United States, 167 U.S. 518, 524 (1897) (holding that “the government has, with respect to its own lands, the rights of an ordinary proprietor” ). back
Ashwander v. TVA, 297 U.S. 288, 331 (1936). back
Id. (quoting Joseph Story, Commentaries on the Constitution of the United States §§ 1325–26 (1833)). back
Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 594 (1987). back
Id. (quoting United States v. City of San Francisco, 310 U.S. 16, 29–30 (1940)). See also Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 294–95 (1958); Alabama v. Texas, 347 U.S. 272, 273 (1954); FPC v. Idaho Power Co., 344 U.S. 17, 21 (1952); United States v. California, 332 U.S. 19, 27 (1947); Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872); United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840). back
Gibson, 80 U.S. (13 Wall.) at 99. back
39 U.S. (14 Pet.) 526 (1840). back
Id. at 533. back
Id. at 538. See also Kleppe v. New Mexico, 426 U.S. 529, 541 (1976) ( “In short, Congress exercises the powers both of a proprietor and of a legislature over the public domain.” ) (citing Alabama v. Texas, 347 U.S. at 273; Sinclair v. United States, 279 U.S. 263, 297 (1929) (repudiated on other grounds by United States v. Gaudin, 515 U.S. 506, 519–20 (1995)); United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915)). back
Ashwander v. TVA, 297 U.S. 288, 335–40 (1936). See also Ala. Power Co. v. Ickes, 302 U.S. 464 (1938). back