Rethinking the Federal Eminent Domain Power
2013; The Yale Law Journal Company; Volume: 122; Issue: 7 Linguagem: Inglês
ISSN
1939-8611
Autores Tópico(s)Legal principles and applications
ResumoIt 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. author. Fellow, Constitutional Law Center, Stanford Law School. As usual, I owe thanks to many generous people for their comments, suggestions, and (sometimes) encouragement—in this case, to Akhil Amar, Samuel Bray, Emily Bremer, Donald Burke, Christian Burset, Jud Campbell, Josh Chafetz, Nathan Chapman, Robert Ellickson, Richard Epstein, Chad Flanders, Roger Ford, Heather Gerken, Brianne Gorod, Kyle Graham, Daniel Hemel, Adam Hirsch, Orin Kerr, Andrew Koppelman, John Langbein, Ed Larson, Gary Lawson, Robert Leider, Jaynie Lilley, Irina Manta, Michael McConnell, David McGowan, Judith Miller, Christina Mulligan, John Ohlendorf, Alex Potapov, Dave Pozen, Sai Prakash, Zach Price, Mike Rappaport, Richard Re, Larry Rosenthal, Stephen Sachs, Mark Shawhan, Reva Siegel, Ilya Somin, James Stern, Lior Strahilevitz, Seth Barrett Tillman, Derek Webb, Ilan Wurman, the many people who discussed the paper with me during job interviews, presentations and workshops, and the tireless staff at the Stanford Law Library. rethinking the federal eminent domain power 1739 article contents
Referência(s)