The Political Question of Public Lands

The Property Clause of Article IV of the United States Constitution provides: “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.” Thus, among other things, the Constitution assigns the disposal of federally owned lands to Congress alone. That means the other branches of the federal government, including the courts, have no jurisdiction to exercise this power or to compel Congress to use it. Put another way, when Congress does not dispose of public lands through sale or transfer, that inaction is not subject to executive override or judicial review. The only remedy for Congress’s decision to retain public lands rather than sell them is at the ballot box. In August 2024, Utah attempted to sue the federal government in the Supreme Court of the United States to compel Congress to sell or transfer millions of acres of public lands. While Utah’s quixotic effort failed, this Article treats Utah’s lawsuit as a case study in how states and others will try to circumvent Congress to compel the federal government to divest itself of public lands. It concludes any effort to achieve the forced divestment of public lands outside the law-making process in Congress is unconstitutional.