Constitution of the United States/Art. IV/Sec. 3/Clause 2 Territory and Other Property

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The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
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Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
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Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
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Establishment Clause
Free Exercise Clause
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Freedom of Association
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Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
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Eighth Amendment: Cruel and Unusual Punishment
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Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
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Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
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Eighteenth Amend., Section 1 Prohibition
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Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article IV Relationships Between the States

Section 3 New States and Federal Property

Clause 2 Territory and Other Property

Clause Text
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.

Property Clause Generally[edit | edit source]

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's 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 . . . .Gibson, 80 U.S. (13 Wall.) at 99.

Consequently, the Court has generally been deferential to congressional uses of Property Clause authority. In the 1840 decision United States v. Gratiot,[6] 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."[7] In upholding the lease, the Court rejected such a narrow interpretation, stating that "disposal must be left to the discretion of Congress."[8] 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 Valley 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.[9]

Federal and State Power Over Public Lands[edit | edit source]

The Property Clause provides that public lands may only be disposed of with congressional authorization.[10] The Supreme Court has held "that the power of Congress is exclusive, and that only through its exercise in some form can rights in lands belonging to the United States be acquired."[11] However, the Court held that, by being aware of and doing nothing to halt the long-time practice of presidents withdrawing land from the public domain by Executive Orders, Congress had acquiesced to the practice.[12] In 1976, Congress reversed course by passing legislation establishing procedures for land withdrawals and explicitly repealing congressional acquiescence to the practice, as well as any implicit executive withdrawal authority.[13]

Congress may dispose of public property in a manner that furthers public policy, as determined exclusively by Congress.[14] The Court has likened congressional authority over federal land within states to that of states' police power.[15] The Court has explained that "[t]he general government doubtless has a power over its own property analogous to the police power of the several states, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case."[16] In its 1976 Kleppe v. New Mexico decision, the Court restated the applicable principles governing Congress's power under the Property Clause unanimously upholding a federal law to protect wild-roaming horses and burros on federal lands.[17] The Court explained that the Property Clause, in broad terms, gives Congress the power to determine what are "'needful' rules 'respecting' the public lands."[18] The Court continued that, while the outer limits of this authority is unsettled, "we have repeatedly observed that '[t]he power over the public land thus entrusted to Congress is without limitations.'"[19]

Over the course of the Nation's history, the Court has held that Congress's authority over public land includes: the 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"[20]; "to declare the dignity and effect of titles emanating from the United States"[21]; to determine the validity of grants which precede the government's acquisition of the property[22]; to exempt lands privately acquired under the homestead laws from previously contracted debts[23]; to withdraw land from settlement and to prohibit grazing thereon[24]; to restrict the construction of fencing on private land that abuts public land to prevent the unlawful occupation of public property[25]; to limit destruction of federal property[26]; to define and abate nuisances that affect the property[27]; to prohibit the introduction of liquor on lands purchased by the federal government for an Indian reservation[28]; and to protect wildlife located on public land.[29]

In Kleppe, the Court recognized that Congress's power over federal lands includes power to regulate the lands, stating "Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant the Property Clause."[30] No state may tax federal property pursuant to state authority,[31] nor may state legislation interfere with the power of Congress under the Property Clause or embarrass its exercise.[32] Moreover, when Congress acts with respect to lands covered by the Clause, its legislation preempts conflicting state laws.[33] Thus, by virtue of the Treaty of 1868 through which the federal government agreed to allow an Indian tribe living on a reservation in Arizona to engage in self-governance, the tribal court, rather than Arizona state courts, had jurisdiction over a suit for a debt owed by a tribal resident to a non-Indian operating a federally licensed store on the reservation.[34]

Federal law resolves questions of whether title to land formerly owned by the United States has been conveyed to another.[35] After title has passed from the United States, however, "that property, like all other property in the state, is subject to the state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States."[36] Courts also will look to state law to address questions of precisely what property the federal government conveyed to a grantee.[37] However, a state statute enacted after a federal grant of property cannot operate to vest in the state rights that either remained in the United States or passed to its grantee.[38]

Power of Congress over Territories[edit | edit source]

Congress holds broad authority over territories of the United States.[39] The Court has held that, with regard to territories, "Congress has the entire dominion and sovereignty, national and local, Federal and state, and has full legislative power over all subjects upon which the legislature of a state might legislate within the state."[40] Congress may legislate directly with respect to the local affairs of a territory, or it may delegate that power to the territories,[41] except as limited by the Constitution.[42] Pursuant to this authority, for example, Congress has prohibited territorial legislatures from enacting local or special laws on enumerated subjects.[43] Further, Congress has extended the full range of constitutional protections enjoyed by United States residents in territories that have been incorporated as a part of the country by congressional action,[44] but has not done so in "unincorporated" territories (that is, those territories not clearly on the pathway to U.S. statehood).[45] Congress may establish, either directly or indirectly through authorization to a territorial legislature, "legislative courts" pursuant to the Property Clause rather than "constitutional courts" established by Article III.[46] These legislative courts also may exercise admiralty jurisdiction despite the fact that admiralty jurisdiction may be exercised in the states only by Article III courts.[47] Congress also may establish non-judicial territorial offices,[48] and if the powers and duties assigned to these offices are "primarily local" in nature, then the manner of appointment for officials to these offices does not have to comply with Article II's Appointments Clause.[49]

  1. 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").
  2. Ashwander v. TVA, 297 U.S. 288, 331 (1936).
  3. Id. (quoting Joseph Story, Commentaries on the Constitution of the United States §§ 1325-26 (1833)).
  4. Cal. Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 594 (1987).
  5. 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).
  6. 39 U.S. (14 Pet.) 526 (1840).
  7. Id. at 533.
  8. 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)).
  9. Ashwander v. TVA, 297 U.S. 288, 335-40 (1936). See also Ala. Power Co. v. Ickes, 302 U.S. 464 (1938).
  10. United States v. Fitzgerald, 40 U.S. (15 Pet.) 407, 421 (1841). See also Utah Power & Light Co. v. United States, 243 U.S. 389, 403-04 (1917).
  11. Utah Power & Light Co., 243 U.S. at 404.
  12. Sioux Tribe v. United States, 316 U.S. 317, 324-25 (1942); United States v. Midwest Oil Co., 236 U.S. 459, 469 (1915).
  13. Pub. L. No. 94-579, § 704(a), 90 Stat. 2792 (1976).
  14. United States v. City of San Francisco, 310 U.S. 16, 30 (1940) ("The power over the public land thus entrusted to Congress is without limitations. And it is not for the courts to say how that trust shall be administered. That it for Congress. Thus, Congress may constitutionally limit the disposition of the public domain to a manner consistent with its views of public policy." (internal citations omitted)). See also Light v. United States, 220 U.S. 523, 535-36 (1911).
  15. Camfield v. United States, 167 U.S. 518, 525 (1897).
  16. Id.
  17. Kleppe v. New Mexico, 426 U.S. 529, 539 (1976).
  18. Id.
  19. Id. (quoting City of San Francisco, 310 U.S. at 29-30). See also Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 294-295 (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).
  20. Gibson, 80 U.S. (13 Wall.) at 99. See also Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902); Irvine v. Marshall, 61 U.S. (20 How.) 558, 566-67 (1858).
  21. Bagnell v. Broderick, 38 U.S. (13 Pet.) 436, 450 (1839). See also Field v. Seabury, 60 U.S. (19 How.) 323, 332 (1857).
  22. Tameling v. U.S. Freehold & Immigr. Co., 93 U.S. 644, 663 (1877). See also Maxwell Land-Grant Case, 121 U.S. 325, 365-66 (1887).
  23. Ruddy v. Rossi, 248 U.S. 104, 107 (1918).
  24. Light v. United States, 220 U.S. 523, 535-36 (1911). See also The Yosemite Valley Case, 82 U.S. (15 Wall.) 77, 93-94 (1873).
  25. Id. See also United States v. Waddell, 112 U.S. 76, 79-80 (1884); Jourdan v. Barrett, 45 U.S. (4 How.) 169 (1846).
  26. Hunt v. United States, 278 U.S. 96, 101 (1928).
  27. Camfield v. United States, 167 U.S. 518, 525 (1897).
  28. United States v. McGowan, 302 U.S. 535, 539 (1938).
  29. Kleppe v. New Mexico, 426 U.S. 529, 539 (1976); McKelvey v. United States, 260 U.S. 353, 359 (1922).
  30. Kleppe, 426 U.S. at 543 (citing Mason Co. v. Tax Comm'n of Wash., 302 U.S. 186, 197 (1937); Utah Power & Light Co. v. United States, 243 U.S. 389, 403-405 (1917); Ohio v. Thomas, 173 U.S. 276, 283 (1899)). See also Wilson v. Cook, 327 U.S. 474, 487-88 (1946); Surplus Trading Co. v. Cook, 281 U.S. 647, 650 (1930).
  31. Van Brocklin v. Tennessee, 117 U.S. 151 (1886).
  32. Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872). See also Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902); Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858).
  33. Kleppe, 426 U.S. 529; Cal. Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 593-94 (1987) (applying traditional preemption analysis to a question of whether state environmental laws apply to a private company utilizing an unpatented mining permit on federal land).
  34. Williams v. Lee, 358 U.S. 217, 223 (1959).
  35. United States v. Oregon, 295 U.S. 1, 28 (1935) ("The laws of the United States alone control the disposition of title to its lands. The states are powerless to place any limitation or restriction on that control.").
  36. Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 517 (1839).
  37. Oklahoma v. Texas, 258 U.S. 574, 595 (1922) ("if its [i.e., a federal treaty or statute conveying federal property] intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the state in which the land lies.").
  38. United States v. Oregon, 295 U.S. at 29 ("In construing a conveyance by the United States of land within a state, the settled and reasonable rule of construction of the state affords a guide in determining what impliedly passes to the grantee as an incident to land expressly granted.").
  39. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-74 (1945); Balzac v. Porto Rico, 258 U.S. 298, 305 (1922); Dorr v. United States, 195 U.S. 138, 149 (1904); United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840); Sere & Laralde v. Pitot, 10 U.S. (6 Cranch) 332, 336-37 (1810). See also Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948); United States v. Vaello Madero, No. 20-303, slip op. at 2 (U.S. Apr. 21, 2022) (explaining that the Territory Clause "affords Congress broad authority to legislate with respect to the U.S. Territories" and that, in "[e]xercising that authority, Congress sometimes legislates differently with respect to the Territories . . . that it does with respect to the States.").
  40. Simms v. Simms, 175 U.S. 162, 168 (1899). See also El Paso & Ne. Ry. v. Gutierrez, 215 U.S. 87 (1909); United States v. McMillan, 165 U.S. 504, 510 (1897); The Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42 (1890); First Nat'l Bank v. County of Yankton, 101 U.S. 129, 133 (1880).
  41. Binns v. United States, 194 U.S. 486, 491 (1904). See also Murphy v. Ramsey, 114 U.S. 15, 44 (1885); Sere & Laralde, 10 U.S. (6 Cr.) at 336.
  42. Simms, 175 U.S. at 163; Wagoner v. Evans, 170 U.S. 588, 591 (1898); Walker v. New Mexico & S. Pac. R.R., 165 U.S. 593, 604 (1897)
  43. Binns, 194 U.S. at 491. See also Murphy, 114 U.S. at 44; Sere & Laralde, 10 U.S. (6 Cranch) at 336.
  44. Simms, 175 U.S. at 163; Wagoner, 170 U.S. at 591; Walker, 165 U.S. at 604.
  45. Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138 (1904); Downes v. Bidwell, 182 U.S. 244 (1901) (collectively, the Insular Cases). The Court stated: "The guaranties of certain fundamental personal rights declared in the Constitution, as, for instance, that no person could be deprived of life, liberty, or property without due process of law," apply to persons in Puerto Rico. Balzac, 258 U.S. at 312. However, the full scope of constitutional provisions that are applicable in Puerto Rico and the other territories is unsettled. Id. ("The Constitution, however, contains grants of power, and limitations which in the nature of things are not always and everywhere applicable and the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which ones of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements."). See also Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 331 n.1 (1986) (equality of voting rights applicable in Puerto Rico); Rodriguez v. Popular Democratic Party, 457 U.S. 1, 7-8 (1982) (First Amendment speech applicable in Puerto Rico); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) (procedural due process applicable in Puerto Rico); Torres v. Puerto Rico, 442 U.S. 465 (1979) (search and seizure applicable in Puerto Rico); Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976) (equal protection principles applicable in Puerto Rico); Ocampo v. United States, 234 U.S. 91 (1914) (Sixth Amendment jury trial applicable in Philippines); Hawaii v. Mankichi, 190 U.S. 197 (1903) (grand jury indictment and trial by jury applicable in Hawaii). See also Califano v. Torres, 435 U.S. 1, 4 n.6 (1978) (right to travel assumed). The vitality of the Insular Cases has been questioned by some Justices (see, e.g., Harris v. Rosario, 446 U.S. 651, 652-53 (1980); Torres v. Puerto Rico, 442 U.S. 465, 474, 475 (1979) (concurring opinion of four justices)) Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion)), but the Court adheres to it (United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990)). See also Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1655 (2020) (describing the Insular Cases as "much-criticized," but declining to overrule them "whatever their continued validity.").
  46. Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546 (1828). See also Romeu v. Todd, 206 U.S. 358, 368-69 (1907); United States v. McMillan, 165 U.S. 504, 510 (1897); McAllister v. United States, 141 U.S. 174, 180 (1891); The City of Panama, 101 U.S. 453, 460 (1880); Reynolds v. United States, 98 U.S. 145, 154 (1879); Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874); Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 447 (1872); Benner v. Porter, 9 (How.) 235, 236 (1850).
  47. Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) at 545 ("Although admiralty jurisdiction can be exercised in the states in those Courts, only, which are established in pursuance of the 3d article of the Constitution; the same limitation does not extend to the territories."); The City of Panama, 101 U.S. at 460.
  48. Fin. Oversight & Mgmt. Bd. for P.R., 140 S. Ct. at 1654-55.
  49. Id. at 1665. See Art. II, Sec. 2, Cl. 2: Ambassadors, Ministers, and Consuls Appointments.