Rethinking the federal eminent domain power.

• Author: Baude, William
• Position: Introduction through II. The History of Federal Takings E. The 1860s, p. 1738-1785

ARTICLE CONTENTS INTRODUCTION I. ENUMERATED POWERS A. The Puzzle of Implied Powers B. The Idea of Great Powers C. Eminent Domain as a Great Power 1. The Taxation Analogy 2. Real Property 3. The Enclaves Clause II. THE HISTORY OF FEDERAL TAKINGS A. The First Twenty Years B. Roads, Again C. The Supreme Court D. Continuing Cooperative Takings E. The 1860s F. The Growth of Modern Doctrine G. Conclusion III. THE TAKINGS CLAUSE A. District and Territories B. The Purpose of the Clause C. The Ninth Amendment D. Other Possible Roles for the Takings Clause IV. CONSTITUTIONAL STRUCTURE A. Inherent Power B. Sovereignty C. Separate Spheres V. IMPLICATIONS AND FURTHER DIRECTIONS A. Interpretive Problems 1. Vagueness and Liquidation 2. The Civil War and Constitutional Change B. Doctrinal Implications 1. Necessary and Proper Clause a. Commandeering and Sovereign Immunity b. Mandates c. Conscription d. Other Areas 2. Interactive Federalism CONCLUSION INTRODUCTION

It is black-letter law that the federal government has the power to take land through eminent domain, so long as it pays compensation. The Supreme Court first established the existence of this power in the 1875 case of Kohl v. United States, (1) and it is now taken for granted. Many people can no longer imagine that the power was ever controversial. The modern conventional wisdom, however, is a complete departure from the historical understanding.

At the Founding, the federal government was not understood to have the power to exercise eminent domain inside a state's borders. This understanding was reflected in seventy-five years of subsequent practice and precedent. The federal government sometimes needed land--for roads, lighthouses, etc.--but it did not use eminent domain to get it. Instead, it repeatedly relied on the states to condemn the land it needed. During this period, federal practice, congressional debates, and even two Supreme Court opinions all indicated a lack of any general federal power of eminent domain.

Most of this has been forgotten. Some scholars mention the original practice in passing, but they treat it as an oddity, with no suggestion that it had a sensible constitutional justification. (2) Major works on the early development of the nation do not discuss the lack of federal eminent domain at all. (3) Even scholars broadly critical of the uses to which federal eminent domain has been put do not challenge its historical legitimacy. (4) The few scholars who do discuss the federal power of condenmation simply do not discuss (or misinterpret) much of the historical evidence. (5)

The original view was that the federal government had eminent domain power only in the District of Columbia and the territories, where the Constitution expressly granted it plenary power. Eminent domain could not be inferred from Congress's enumerated powers or the Necessary and Proper Clause because it was a great power, too important to be left to implication. As mentioned above, this understanding was reflected in uniform, widespread practice. While there certainly were expressions of the contrary view, especially several decades after the Founding, those views were not actually reflected in any judicial holding or federal practice until the Civil War. Meanwhile, during this period the Supreme Court declared--in a surprisingly neglected decision--that outside of the District and the territories "the United States have no constitutional capacity to exercise ... eminent domain." (6)

One might think that a broad eminent domain power was either created or presupposed by the Takings Clause, but this is also not the case. As for creation: the Clause merely creates a right to compensation, and such a right ought not imply an extension of federal power. Indeed, the Ninth Amendment was written in order to forbid precisely this sort of implication--that the presence of rights in the Constitution implied that the federal government would otherwise have had the power to infringe them. As for presupposition: it is far more likely that the Clause was meant to deal with the District and the territories, the latter of which had been governed by a predecessor of the Takings Clause in the Northwest Ordinance. In any event, inference from the enactment of the Takings Clause can be perilous--unlike any other clause in the Bill of Rights, ratifying states did not request it in any form, and it was proposed and ratified with little comment. If anything, the silence suggests that the Clause does not reflect any serious fear of a federal eminent domain power.

The Supreme Court's eventual decision in Kohl was not consistent with the best understandings of the enumerated powers or the Takings Clause, and it gave remarkably short shrift to many decades of practice and precedent. The decision appears to have been motivated instead by a constitutional theory that came to prominence after the Civil War. Courts also relied on this theory of inherent powers (unconnected to the enumerated powers) in contemporaneous cases finding inherent power over immigration, governance of the Indian tribes, and other issues. Kohl further drew on another contemporaneous theory--that federal and state sovereignty occupied separate spheres, forbidding any constitutional rule that would make one dependent on the other. Both the inherent powers and separate spheres theories were important breaks from the past, and they have recently come under strong criticism. That skepticism should be extended to federal eminent domain.

If the federal government was originally thought to lack the power of eminent domain, there remains the question of what relevance that history possesses today. Its implications depend on one's interpretive methodology. For originalists, the direct implications for constitutional meaning are fairly straightforward. Yet nonoriginalists should also find the argument relevant. Original meaning is an important ingredient in many nonoriginalist interpretive theories, (7) especially when borne out by widespread post-ratification practice. (8)

Federal eminent domain has become a widespread and largely unquestioned part of the federal government's land-acquisition practice. In 1978 and 1979, the General Accounting Office (GAO) reported between seven and eight thousand new federal condemnations each year. (9) The normalization of the federal eminent domain power may be exacerbated by the current statutory authorization for taking land, which categorically allows any officer who is authorized to buy land to initiate an eminent domain proceeding without further specific authorization. (10)

At the same time, there are at least some hints of change in the modern practice. Another GAO report (in 1979) suggested that the federal government should curtail its use of eminent domain, arguing that eminent domain was "time-consuming and expensive," and that the government already had plenty of land. (11) And while there have been no comprehensive accounts of federal eminent domain since 1978, responses to Freedom of Information Act (FOIA) requests suggest that it may be declining. One agency reported that it has used eminent domain infrequently in recent years because the agency has already obtained most of the property it needs. (12) Other agencies report that they only perform "friendly" condemnations; for example, the Postal Service reports only a single condemnation since 2000--a "friendly" one designed to circumvent laws that prevent members of Congress from benefiting from federal contracts. (13)

In National Federation of Independent Business v. Sebelius, (14) for example, understanding federal eminent domain is also of relevance to federalism more broadly. Chief Justice Roberts invoked a theory of great powers to argue that the Necessary and Proper Clause could not justify the individual mandate. (15) At the same time, the example of eminent domain may not support his use of the theory: the historical evidence that imposing mandates is a great power is not comparable to the evidence that eminent domain was. Even though imposing mandates may not be a great power, there are other contemporary questions--such as commandeering, sovereign immunity, conscription, and the freedom of the press--where the great powers idea may rightfully have more bearing.

The Article will proceed as follows. The Supreme Court's 1875 decision in Kohl invoked three interpretive arguments for recognizing an implicit federal power of eminent domain--enumerated powers, the Takings Clause, and inherent authority based in constitutional structure. Parts I through IV take those arguments as their organizing principle, providing historical background to show why they were not widely thought persuasive until shortly before Kohl. Part I discusses whether a takings power could have been deduced from the enumerated powers and the Necessary and Proper Clause; it also introduces the concept of great powers. Part II details the subsequent practice of eminent domain, relevant especially to the enumerated powers argument, but ultimately to all three. Part III discusses whether such a power would have been thought to be implied or presupposed by the Takings Clause of the Fifth Amendment. Part IV discusses a set of structural arguments for an eminent domain power that do not hinge on any provision of the Constitution's text. Part V applies the insights of the first four Parts to contemporary issues.

Finally, a preliminary note on methodology. My recovery here of the history of eminent domain has both descriptive and normative purposes. The historical discussion in Parts I to IV aims to recover how eminent domain and the enumerated powers were conceptualized and practiced at and after the Founding. Generally, any readers interested in the history should be able to read those Parts without regard to whether they share my normative commitments about the relevance of that history. Part V introduces my own views about the relevance of that history...