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.