We need to sell more federal land
Senator Mike Lee stepped onto a political land mine when he proposed the federal government sell a tiny pinch of the 640 million acres that it owns, most of it west of the Rockies. Politicos from left and right condemned the proposal as a betrayal of a grand heritage. I too have an issue with Senator Lee’s proposal: It doesn’t go far enough. Not only should the federal government sell much of its land, but the Constitution in fact demands it.
Despite the heated response to Lee’s proposal, the sale of federal land is neither unusual nor harmful. In fact, the federal government has been selling land since the Founding. Between 1781 and 2018, the federal government divested 1.29 billion acres of public land, most of it to private parties, some to states. That process slowed over time. Between 1964 and 1996, for example, the federal government sold 78 million acres. The senator’s proposal, by comparison, would amount to a few million.
So why the vehement opposition to selling public lands now? Perhaps Americans conclude we’ve reached the perfect balance of federal land ownership after a centuries-long process of property changing hands. But that conclusion is about as likely to be accurate as a Star Wars stormtrooper’s aim.
And there is another unfounded assumption fueling the vitriol: that the federal government manages these lands better than local government or private owners would—that a federal bureaucrat is the only thing standing between pristine beauty and a Mad Max hellscape. It’s easy to test that assumption. Just look at the eastern half of the United States, almost none of which is owned by the federal government. The eastern states are not a garbage-strewn wasteland; and in fact, studies of state and private lands in the eastern states demonstrate a solid record of conservation and competent management. Meanwhile, the federal land agencies have run heavy deficits and have failed to keep up with maintenance. This neglect can have deadly consequences, because the federal failure to thin forests has resulted in a higher risk of catastrophic wildfire in national forests than in state and private forest land.
But much of this is beside the point, because the Constitution in fact requires the federal government to sell much of its land, far more than Senator Lee has proposed.
Under our Constitution, the federal government has specific, limited powers. Any government power not enumerated in the Constitution belongs to the states. The Constitution does grant limited authority to Congress to own and manage land: “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.” But this clause is not a grab-bag of federal power; it does not elevate the federal government to the nation’s landlord. Rather, it clarifies that the government can own and manage property if it does so in pursuit of its enumerated powers. If the federal government is not using the land it owns to achieve a valid federal purpose, then it must dispose of the land.
At minimum, this would include most if not all land managed by the Bureau of Land Management (BLM), roughly 248 million acres. This does not include national parks, national forests, or tribal lands. Federal law grants the BLM discretion to use or dispose of its land as it sees fit—for example, the BLM currently leases out some of its land every year to the Burning Man festival. In other words, these 248 million acres are not committed to a federal purpose enumerated by the Constitution.
Over all this land—more than twice the size of California—the BLM acts like a state legislature and governor rolled into one. It has created its own criminal code, a nitpicking tome governing all manner of minutiae, from horses to homelessness. Nothing in the Constitution’s careful list of limited powers enables federal bureaucrats to decide the criminal penalty for a missing taillight, yet that’s what they’re up to.
The Constitution’s limits on federal power don’t mean much if the federal government can bypass those limits by acquiring land and ruling it as a petty overlord. The Founders did not leave behind a cheat code in the Constitution. They designed the federal government to enjoy only specific, limited power. Authorizing the federal government to acquire and rule land as it pleases is like kid-proofing every cabinet and door in the house and then handing the tyke a crowbar.
This is more than a turf war. Ultimately, the constitutional system of limited and separated government protects individual liberty. It prevents too much power from pooling in one place. Widespread federal ownership of land imperils the checks and balances that keep us free. Our lands need not rely on federal ownership for protection. But our personal freedoms do rely on the separation of powers endangered by too much federal control of our land. The West will be more free and more prosperous if the federal government takes up the call to sell its vast holdings.
