Napolitano: Washington lacks constitutional right to own land in Western states

As we heard over and over during the Nevada standoff between federal agents and Cliven Bundy and his gun-bearing supporters, this fight wasn’t about cows or tortoises, it was about land and who controls it. For Bundy, the starting point was clear.

"I don’t recognize the United States government as even existing," Bundy said in an April 10 radio interview.

Even in libertarian circles that is an extreme view, but Judge Andrew Napolitano of Fox News did lend his weight to the general argument that Washington is in the wrong. Napolitano was talking on Fox’s Hannity when the host pointed out Washington’s extensive holdings in the West.

"Look at the percentage they own in Nevada, 81 percent. Utah, 66 percent. Idaho, 61 percent," Hannity said. "Why does the government own all of this land anyway?"

"Sean, I'm going to make a statement that the government will consider outrageous," Napolitano warned. "The Constitution simply does not authorize the federal government to own any of this land. All of it is being held unconstitutionally and all of it should be returned to the private property owners from which it was taken or to the states in which it exists, period."

We wanted to hear Napolitano’s legal explanation, but he did not get back to us. However, he is not the first to make this claim and we were able to review the legal record to see whether the federal government lacks the constitutional authority as he said.

The short answer is that the Constitution, through the Property Clause, specifically gives the government the power to own land. Over time, the Supreme Court has ruled that not only does the government own the land, but it enjoys broad rights in deciding what happens on that land.

In 2007, the Congressional Research Service, the nonpartisan research arm that works on behalf of Democrats and Republicans, explored the legal roots of federal land ownership. Its finding was unambiguous.

"The Property Clause gives Congress authority over federal property generally, and the Supreme Court has described Congress’ power to legislate under this Clause as ‘without limitation,’ " the researcher wrote.

The Heritage Foundation, a conservative think-tank and activist organization in Washington, D.C., says much the same thing on its online guide to the Constitution. It provides the key text from Article IV of the Constitution.

"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."

The accompanying essay, by Columbia Law School professor Thomas Merrill, noted that many people have debated the scope of this clause. The most narrow interpretation, Merrill wrote, "simply allows Congress to act as an ordinary owner of land. It can set policy regarding whether such lands will be sold or retained and, if they are retained, who may enter these lands and for what purposes."

For the purposes of this fact-check, even that limited approach leaves Napolitano high and dry.

We asked another legal scholar at Heritage, John Malcolm, if we were misinterpreting anything. Malcolm told us we had it right.

"I’m not aware of anything in the Constitution that would preclude the federal government from owning land in these western states," Malcolm told PunditFact.

Critics of Malcolm’s view point to an 1845 Supreme Court decision having to do with control over rivers and other navigable waterways. The nut of this ruling, as we read on the libertarian website Armstrong Economics, is that "once a territory becomes a state, the (federal government) must surrender all claims to the land."

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This argument has special relevance for states such as Nevada and Utah that were formed from large swaths of land owned by Washington. By this legal logic, when those states entered the Union, the federal government lost the ability to own land there.

But according to the Congressional Research Service, that interpretation is "contrary to the plain wording of the Constitution." On top of that, under the law that created Nevada in 1864, the state specifically agreed to give up any claim to "unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States."

For you history buffs, the United States acquired the land (see map) that became Nevada, California, Utah, plus chunks of New Mexico, Colorado, and Arizona from Mexico in 1848 through the Treaty of Guadalupe Hidalgo that ended the Mexican-American War. Mexico also ditched any claim to Texas. In exchange, the United States paid Mexico $15 million. Napolitano said the land should be returned but given this chain of title, it is hard to see who would have any claim. We doubt he is thinking of Mexico.

That Congressional Research Service report along with Heritage Foundation’s guide note that since 1845, the Supreme Court has issued many decisions that strengthen the government’s hand. An 1897 case said Congress could block someone from putting up fences on private land if it blocked access to public land. In 1911, the court affirmed the use of large tracts of land as national forests, held in the public interest.

John Leshy is a professor of real property law at the University of California Hastings College of the Law. Leshy served in the Interior Department in the Carter and Clinton administrations and was part of the transition team when President Barack Obama first took office.

"Napolitano’s statement is absurd," Leshy said. "The constitutional basis of federal land ownership is not subject to any serious debate among scholars, and hasn’t been for a very long time."

Our ruling

Napolitano said the federal government has no constitutional authority to own land in many Western states. The underlying legal argument rests on a tenuous interpretation of constitutional language and the rejection of about 125 years of Supreme Court decisions. The legal scholars we reached, regardless of any political leanings they might have, agreed that the Constitution clearly grants Washington the power to own land and that arguments to the contrary are baseless.

We rate the claim Pants on Fire.