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Tuesday, June 18, 2013

Repealing the Federal Eminent Domain Power

Ilya Somin notes the renewed House action on the Private Property Rights Protection Act, a federal bill that would eliminate funding for economic development takings like those that would be forbidden by the Kelo dissent.  As Ilya also notes, the bill seems unlikely to become law, but the fact that there is any activity at all is a sign that at least some members of Congress would like to cast a symbolic vote for narrowing eminent domain authority, even if it's an authority that the judiciary has upheld.

If so, may I suggest a new way for members of Congress to do that?  By repealing the federal eminent domain power.  Since 1875, the Supreme Court has held that the federal government has the power to take land through eminent domain.  But as I explain at length in the most recent issue of the Yale Law Journal, that decision was probably wrong as an original matter, and was certainly inconsistent with the very widespread understanding and tradition from the Founding until the Civil War.  Congress repeatedly avoided using eminent domain (except in the District and territories); when it needed land, the states took it.  Even the Supreme Court agreed.

The most that can be said for the modern understanding is that the Supreme Court has upheld it.  But the supporters of the Private Property Rights Protection Act have shown that they're willing to pursue their own views of the proper scope of eminent domain, even if the judiciary would uphold a broader one.  So perhaps

If that's too radical, there's an alternative.  Current federal law doesn't require any specific Congressional authorization for a federal taking.  Under 40 U.S.C. 3113:

An officer of the Federal Government authorized to acquire real estate for the erection of a public building or for other public uses may acquire the real estate for the Government by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so.

At a minimum, the House could propose a bill repealing this statute, and requiring that exercises of constitutionally dubious federal eminent domain authority be specifically authorized by Congress.

Posted by Will Baude on June 18, 2013 at 03:40 AM in Constitutional thoughts, Law and Politics, Property | Permalink

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Comments

Reminds me of a case that arose while I was a gov't attorney. It wasn't my case, so this is hearsay and memory.

A developer wanted to build a shopping mall on vacant land near Manassass Battlefield Park. Park Service didn't want to take the land, because it had almost no historical value. Its sole connection to the battle was that on one night, Lee had pitched his tent there.

Local homeowners were opposed to the shopping mall, so they launched a national campaign (including through history magazine ads) to "save" the land where "men fought and died," which they had not. They got a bill through Congress that ordered Park Service to condemn the land.

It turned out that the legislation's description of the land to be taken had a problem. It included several of the protesting homeowner's houses! Park Service, which was highly annoyed, told them it was left no discretion by the legislation, Congress wasn't about to revisit the issue, and the homeowner's houses were taken.

Posted by: Dave Hardy | Jun 22, 2013 6:37:36 PM

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