A Plan to Renew the Promise of American Life, Plank 12
Plank 12. Sell unneeded federal land
12.1. Sell all unneeded, non-precious federal land immediately to the states or the private sector, taking special care to protect national parks and other precious federal lands from human damage and commercial development. With respect to areas designated as precious: 1) Lease them to the states, to be managed by the states, under tight federal restrictions and supervision, for a period not to exceed 99 years. 2) During this transitional lease period, propose and submit to the states a constitutional amendment granting Congress a specific power to create and maintain national parks, national forests, recreation areas, wildlife refuges, grasslands, etc., regardless of state boundaries. 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 and no more than 10 percent of any one state without the consent of that state). 3) At the end of the transitional lease period, if the proposed amendment has not been ratified, presume that the American people trust the states to manage these treasures and sell the aforementioned lands to the states in fee simple.
The purpose of this plank is to shift power back to the states and the people with respect to land holding. The federal government currently owns more land — much more — than it needs to carry out its constitutional responsibilities, and this fact is detrimental to the nation in a variety of ways. The question is how do we implement an appropriate remedy that is both reasonable and environmentally sound? This plank attempts to find that appropriate remedy.
1. The Constitutional Problem
It may seem heretical to say it, but most national parks are unconstitutional. That’s right. Congress has no enumerated power, express or implied, to establish or maintain national parks, monuments, wilderness areas, waste lands, etc., in areas that lie within the borders of a state, nor any power to do so within a U.S. territory in perpetuity. While Congress does have power to establish and maintain national parks within a federal territory, this power is naturally temporary because the Constitution intends that territorial status itself be temporary. The power goes away when the territorial period finally terminates in self-government, either as a state or as an independent sovereignty.
In short, Congress has no ‘national parks’ power. It may, however, gain such a power by way of a formal constitutional amendment. And one of the main purposes of this plank is to recommend such an amendment.
2. The Sheer Volume Problem
The United States government currently owns nearly 30 percent of the surface area of the United States, at least 654 million acres.
Federal land holdings are concentrated in the western half of the continent—one of out every two acres in the West, in fact. Mystifyingly, the government continues to purchase land: federal holdings have grown by 90 million acres since 1997. In many states, the feds own the majority of the state: for instance, 80 percent of Nevada, 57 percent of Utah, and 53 percent of Oregon. In those states, federal bureaucracies have more say over land use than do the people who actually live there.
As we’ve seen, the Framers of the Constitution never intended for the central government to hold large land-holdings in perpetuity.
How do we know their intentions? From the Northwest Ordinance of 1787 (as amended in 1789), which is traditionally considered one of the four organic acts of the Union, together with the Declaration of Independence, the Articles of Confederation, and the Constitution. It provides for an orderly devolution of millions of acres of federally held lands ‘northwest of the river Ohio’ to the states and to individuals. We also know what Congress actually did with federal lands prior to the Civil War, and that was to form new states from federally owned lands, after a temporary period during which territorial inhabitants would set up their own governments. Once the state was admitted to the Union, the federal land was to be handed over to the state government or sold directly to settlers. And Congress made solemn promises to this effect. This policy was interrupted, however, in the latter half of the nineteenth century, leaving most of the states west of the Mississippi in federal possession, unlike the older, eastern states. In 1976 Congress abandoned even the pretense of keeping its promises to the western states and declared the lands federal forever.
The Founders’ policy should be resumed. Here is my suggested remedy.
1. Sell and lease unneeded federal land.
Congress should sell all federally owned, non-precious land, that is not needed for constitutional purposes, to the states, or to private individuals, as rapidly as circumstances permit, in fee simple (i.e., permanently, without conditions or restrictions on its use). But in cases where the land is precious, that is, where decent people would want to protect it from human damage or commercial development (such as national parks, national forests, recreation areas, wildlife refuges, range lands and even some waste lands), the land should be leased to the state in which it lies, for a period not to exceed 99 years, to be supervised under tight federal supervision and control. At the end of this transitional lease period, if a constitutional amendment has not been ratified granting Congress an enumerated power to create and maintain national parks, etc., the land should be transferred to the state in which it lies in fee simple.
2. Propose a constitutional amendment.
The aforesaid constitutional amendment would do the following.
First, it would expressly grant to Congress a power to hold and maintain national parks, national forests, recreation areas, wildlife refuges, range lands, and waste land, regardless of state boundaries.
Second, ideally, it would also contain 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 and no more than 10 percent of any one state, except with the consent of that state).
If this constitutional amendment is ratified, then, when the leases expire, the federal government can recover its direct control of the lands. (It could also terminate the leases early, if they included a clause to that effect.)
But if the amendment has not been ratified by the time the lease expires, then each state gains full possession of the federal land within its borders.
The Constitution assumes that the states can be trusted to protect natural treasures lying within their own borders. But if the public ultimately decides that the states should not be trusted, then the remedy is to ratify the recommended constitutional amendment.
This plank recommends one constitutional amendment, to grant Congress an express power to create and maintain national parks, national forests, recreation areas, wildlife refuges, range lands, and waste land, up to a limit of no more than 10 percent of the surface area of the United States and no more than 10 percent of any one state without the consent of that state.
Will reduce federal micromanagement of the states and private sector.
Will enrich all Americans through a more efficient use of land and natural resources.
Revised: October 3, 2015.
First published: June 21, 2013.
Author: Dean Clancy.