Abstract

http://ssrn.com/abstract=2270442
 


 



Rethinking the Federal Eminent Domain Power


William Baude


University of Chicago - Law School

May 23, 2013

Yale Law Journal, Vol. 122, No. 1738, 2013

Abstract:     
It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was thought to have an eminent domain power only within the District of Columbia and the territories — but not within states. Politicians and judges (including in two Supreme Court decisions) repeatedly denied the existence of such a power, and when the federal government did need to take land, it relied on state cooperation to do so. People during this period refused to infer a federal eminent domain power from Congress’s enumerated powers or the Necessary and Proper Clause because they viewed it as a "great power" — one that was too important to be left to implication. And they refused to infer it from the Takings Clause either, because the Clause was not intended to expand Congress's power beyond the District and territories.

Eminent domain aside, the notion of great powers is increasingly relevant after National Federation of Independent Business v. Sebelius, in which Chief Justice Roberts invoked a theory of great powers to argue that the Necessary and Proper Clause could not justify the individual mandate. While his application of the theory is questionable, there are many other areas of law — such as commandeering, sovereign immunity, conscription, and the freedom of the press — where the great powers idea may rightfully have more bearing.

Number of Pages in PDF File: 88

Keywords: Eminent Domain, takings, Necessary and Proper, Enumerated Powers, property, federalism, great powers, Kohl, McCulloch

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Date posted: May 27, 2013  

Suggested Citation

Baude, William, Rethinking the Federal Eminent Domain Power (May 23, 2013). Yale Law Journal, Vol. 122, No. 1738, 2013. Available at SSRN: http://ssrn.com/abstract=2270442

Contact Information

William Baude (Contact Author)
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
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