A Plan to Renew the Promise of American Life, Plank 12
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Plank 12. Sell unneeded federal land
Specific Recommendations
12.1. Dispose of all non-precious federal land that is not needed for constitutional purposes immediately by giving or selling it to the states or to the private sector without strings. Deem all other national land holdings that are not needed for constitutional purposes as precious and continue to protect them from human damage and harmful commercial development. Lease these precious lands to the states to manage under federal rules and supervision for a period not to exceed, say, 99 years. During the lease period, propose and submit to the states a constitutional amendment granting Congress an enumerated power to create and maintain, within a state and without its consent, national parks, national forests, recreation areas, wildlife refuges, grasslands, and so on. But include in the amendment a hard cap on the total size of the federal land portfolio (say, a limit of no more than 10 percent of the surface area of the United States excluding territories and no more than 10 percent of any one state without the consent of that state). At the end of the lease period, if the proposed amendment has not been ratified, assume that the American people trust the states to manage these treasures and deed them over to the states without strings.
Comments
The federal government currently owns far more land than it needs to carry out its constitutional responsibilities, nearly 30 percent of the surface area of the United States, at least 654 million acres. Federal land holdings are concentrated in one part of the continent — one of out every two acres west of the Mississippi. Remarkably, the feds continue to acquire land. The federal portfolio has grown by 90 million acres since 1997.
In many states, the feds own the majority of the state: 80 percent of Nevada, 57 percent of Utah, 53 percent of Oregon. Ridiculous.
In those states, federal bureaucracies have more say over land use than do the people who actually live there.
This situation is unconstitutional in spirit and, I would argue, in letter. The Framers never intended for the central government to hold large amounts of land in perpetuity for purposes unrelated to its enumerated powers.
And the Constitution does not grant Congress a power to establish and maintain national parks, monuments, refuges, wilderness areas, and so on, and certainly not without the consent of the affected state. The burden of proof is on those who say it does.
To be sure, Congress does have a power ‘to dispose of and make all needful Rules and Regulations respecting the territory or other property belonging to the United States,’ (Art. IV, sec. 3). But this power is not an exception to the principle of enumerated powers. It is limited by them. It does not, for example, authorize the feds to suspend the Bill of Rights within Yellowstone Park. It merely excludes other governments and entities from interfering with the the feds’ ability to carry out their constitutional duties on their own property.
The ‘needful rules’ clause also ensures that territories have orderly government on their way to statehood or independence. It neither says nor implies anything beyond that.
When Congress admits a U.S. territory to statehood, its constitutional role in governing the territory expires. It must cede to the new state control over any land no longer needed by the federal government to carry out its enumerated powers.
The Northwest Ordinance of 1787 provided for an orderly devolution of millions of acres of federally held lands ‘northwest of the river Ohio’ to the states and to private persons. That model guided the disposition of vast tracts of country acquired from France and Mexico in the nineteenth century. Congress set up territories and guided them to statehood. Once a state was admitted to the Union, Congress handed unneeded land over to the state government or sold it directly to settlers within the state.
This practice faltered after the Civil War. By the early twentieth century, Congress had clearly given up on it. That left most of the surface area of states west of the Mississippi in federal possession. Indeed, to this day, Uncle Sam owns very little of the eastern half of the country.
In 1976 Congress effectively declared the western lands federal forever.
Meanwhile, Congress had established national parks, etc., covering millions of acres. We all love and cherish many of those parks. Deeding them over to the states would be controversial and understandably so.
But we face a conundrum. The Constitution says one thing and public opinion seems to say another. The Constitution takes it for granted that the states can be trusted to protect natural treasures lying within their own borders. But voters may not be convinced.
So, what to do? The default assumption should be that the states can be trusted to protect national treasures. The burden of proof should be on those who say otherwise. But let’s stipulate, for the sake of argument, that the states’ trustworthiness is unclear. The remedy is not to go on in our current, wrongful way, but rather to amend the Constitution to sort the matter out properly. We can follow the law and protect our national treasures at the same time.
Here is my own proposal, for what it’s worth.
With all deliberate speed, Congress should identify which federal land holdings are needed for constitutional purposes and which are not, and which of the unneeded lands are precious and worth protecting.
Whatever is both unneeded and non-precious is, by definition, surplus to requirements. Congress should immediately sell it to the states or to private individuals, in fee simple.
As for lands deemed precious, Congress should continue to manage and protect them from human damage and commercial development. But at the same time, it should prepare a transition to a permanent national settlement of the question.
It should lease the precious lands to the states in which they lie, for a period not to exceed, say, 99 years. Under the lease, the states would manage them under federal rules and supervision.
At the end of the lease period, if a constitutional amendment has not been ratified granting Congress an enumerated power to establish and maintain national parks, etc., within a state and without its consent, all those lands would be automatically transferred to the states in which they lie, without strings.
But — and this is important — to make the deal palatable to states, and to prevent the current situation from recurring, we should include in the amendment a provision placing a hard cap on the amount of land the federal government may own. My own preference is for the feds to own no more than 10 percent of the surface area of the country, excluding territories, and no more than 10 percent of any individual state without the consent of that state. Which is something like 220 million acres in total. Surely, that’s sufficient.
The century-long transition would reveal whether the states are indeed as trustworthy as we assume Congress to be.
Constitutional Amendments
This plank recommends one constitutional amendment, to grant Congress an express power to create and maintain national parks, etc., with a hard cap on the total amount of land Congress may own.
Benefits
Reduces federal micromanagement of the states and private sector.
Enriches all Americans through a more efficient use of land and natural resources.
Revised: October 3, 2015.
First published: June 21, 2013.
Author: Dean Clancy.
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