That’s what my UCLA Law School colleague Professor Bainbridge asks, pointing to this AP story:
Fed up with federal ownership of more than half the land in Utah, Republican Gov. Gary Herbert on Saturday authorized the use of eminent domain to take some of the U.S. government’s most valuable parcels.
I don’t know of any cases specifically on this, but I think this has to be unconstitutional: A state may no more seize federal property than tax the Bank of the United States, see M’Culloch v. Maryalnd, 17 U.S. 316 (1819). “[T]he states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.” Likewise, states have no power to use the eminent domain power to impede the ownership of property by the federal government.
kunkmiester says:
Something to look at here, is that the power of the federal government to hold land is tightly limited by the constitution. The question is, can the state prove that the property in question is not legally held, and will the courts accept the argument?
March 29, 2010, 4:07 pmFloridan says:
How embarrassing for Utah.
March 29, 2010, 4:11 pmThales says:
Maybe this is a power that can be added to Professor Barnett’s proposed Bill of Federalism [and State Nullification?].
March 29, 2010, 4:20 pmmerevaudevillian says:
Isn’t that language from McCullouch is overbroad? Are postal workers immunized from State criminal laws that might impede their ability to, say, trespass land, or break and enter houses, if the workers are fulfilling their duties? Are postal trucks immunized from state traffic laws? Are federal buildings immunized from state zoning laws or codes?
Obviously, each of these hypotheticals, and many others, may have nuances within them about the scope of authority granted by Congress, context, etc. And I have no idea if these, or other, issues have been addressed or previously resolved.
But it seems to me that the heart of McCullough is about States meddling with the “operations” of Congress. A tax on a bank is, obviously, a means by which a state could push the bank out of existence and threaten its existence. But would a taking of (perhaps nondescript) federal land fall under the same category? (It’s not as if Utah is trying to seize a parcel of land with a post office or a federal bank on it.)
I’m not sure. But I think it would be worth exploring in greater detail.
March 29, 2010, 4:20 pmShelbyC says:
Yeah. If Idaho can try Lon Horihuchi(sp) for manslaughter while acting as a federal sniper, who knows?
March 29, 2010, 4:23 pmDuffy Pratt says:
Would the 5th amendment apply to such a taking of federal land? It prohibits the taking of “private property.” Some land held by the federal government is sort of like private property, but it’s also arguable that no land held by a government entity is actually “private property” within the meaning of the clause. If so, and if Utah did have the power to take the land, they might not have to compensate the Feds for the taking.
Congress could certainly prevent any taking by a state simply by passing a law under Article 4, Section 3. A law forbidding federal property from being taken falls within Congress’ power to make needful rules about Federal property. In the absence of such a law, I don’t see anything explicit in the Constitution that would forbid such a taking, and since Congress does have the power to prevent it, I don’t think there’s any need to read something else into the document which would strip the power from the states entirely. Moreover, I can see why Congress might want to pass laws allowing for the taking of some of its land under some circumstances. In other words, I think the Constitution already gives the government the power to deal with this, and I don’t see any reason for applying McCulloch, which is probably overbroad.
March 29, 2010, 4:37 pmG.R. Mead says:
The State is a Sovereign too. Why can’t it do what it wants?
It seems to me this is a quintessential political question to be resolved by legislatinn and possibly the Supremacy clause and NOT by the Courts. Art. IV Sec. 3 does not speak to it, nor does the “enclaves” clause of Art 1 Sec. 8, Cl 17. “Exclusive Legislative authority” of those enclaves exists only in those “Places purchased by the consent of the Legislature of the State…” which seems a big presumption in favor of the State’s primary interest as the dominant sovereign in this proprietary setting. The United States relates to the State as simply another “Purchaser” — i.e. implying fair value transfer a la eminent domain. The stated purposes for “needful buildings” or by ejusdem generis — military uses — is NOT holding it merely as vacant land or land held for non-building purposes.
Seems to me the budget of the United States is such that selling off land to the States may be needed anyway, and the States may need to sell it themselves to generate more taxable property base. I smell politics in other words…
Surely the State can take the land — unless, under the Supremacy clause, Congress chose to enact a law overruling the State’s taking for its own superior public use. The “enclave” clause does not address this kind of land issue going back the other way, so the States power is uncurtailed it seems to me — except possibly by the supremacy clause. Under the Tenth Amendment the State certainly has not been prohibited the power, only subject to the supremacy of Congress to politically overrule it.
Seems fairly straightforward, actually.
March 29, 2010, 4:44 pmCrazyTrain says:
Actually, the answers to these questions are hardly as obvious as you think. In fact, I am pretty sure that the answers to the questions would surprise you. Postal workers in exercise of their duties are almost certainly immune from state criminal tresspass laws if those laws are read to impede the workers’ ability to deliver mail to a mailbox on private land. They can’t break and enter into your house but only because that is not part of their job (and if it were, it would violate the 4th amendment and be redressable by federal law, not state criminal laws). As to trucks being immune from state traffic laws, I believe that they are — I don’t think you can give a mailman a ticket when he is on duty, and if you can, it is only because the feds have waived immunity. Indeed, if a postal worker crashes into your car, you cannot sue for damages in state court, but have to go through the federal tort claims act.
March 29, 2010, 4:45 pmJay says:
Federal buildings surely are immunized from state and local building codes; at least buildings actually constructed by the federal government as opposed to merely leased by an agency, as is common.
Postal workers don’t get to independently decide to break state criminal laws just because they think doing so would make their jobs easier, but yes, to the extent some necessary function of their job required them to break a state law, a state couldn’t prosecute them for it. 28 USC 1442 provides for removal of criminal prosecutions when federal officials are prosecuted for acts done “under color” of their office in state court. Are postal trucks exempt from traffic laws? I think so — that’s why they don’t have license plates, right? And I doubt the feds pay any parking tickets a meter maid puts under the windshield wiper of a mail truck. If you get hit by a mail truck, you can sue the government under the FTCA, and my guess would be that in a really egregious situation (like a postal driver driving drunk) the government would bring federal charges against him or her, just as it typically does for postal employees who get caught stealing mail and the like.
March 29, 2010, 4:46 pmtroll_dc2 says:
I predict that more commenters will cheer on Utah’s attempt than complain; that is the nature of the audience for this Web site.
March 29, 2010, 4:49 pmSlow says:
Most of the time – yes, and even when they are not immune it is not because of anything the states have done, the federal government has ceded this authority. Although in many instances, government owned or leased vehicles are still exempt, not just from traffic laws, but also most torts. You should really read up and sovereign immunity.
Yes – for a hilarious example go visit Savannah (they will quickly point out the ugliest building in town, which violates just about every ordinance in the city), they are still mad about it and there is even a federal court case on it.
March 29, 2010, 4:50 pmmerevaudevillian says:
I guess my examples aren’t as good simply because they implicate sovereign immunity issues, which aren’t quite the issues that questions of eminent get at. But your point is well-taken.
March 29, 2010, 4:50 pmMatthew Reid Krell says:
Not that I’m this huge authority, but if one governmental entity can take from the other via eminent domain, then the federal government can take from Utah just as easily as vice versa. So if the United States was really serious about hanging on to the parcels, they just take ‘em right back. This, of course, could (in theory) become a vast feedback loop of eminent domain litigation.
So, is there a sensible argument for permitting the states to take from the national government, but not vice versa? I’m not sure that I buy the argument that M’Culloch’s language is overbroad in this case, but it’s reasonable. I look forward to seeing how all this plays out.
March 29, 2010, 4:50 pmc.s.b. says:
And here I thought that when states’ rights activists talked about “taking back Congress,” they meant elections!
March 29, 2010, 4:51 pmFloridan says:
Generally speaking, aren’t those agencies that have the right of eminent domain prohibited from using it to acquire land from another agency that can exercise that power?
To suggest otherwise would, it would seem, lead to a never-ending series of back-and-forth land grabs.
March 29, 2010, 4:54 pmD.R.M. says:
If the State of New York buys a tract of land in California, does it have any privileges regarding that land that any other landholder in California does not? Obviously, only insofar as it can find a warrant in the Federal Constitution to that end.
Now, the Article 1 Section 8 right to exercise exclusive authority over Federal lands within states is limited to forts, magazines, arsenals, dockyards, and “other needful buildings”. Other needful buildings might be a wide phrase, but it’s hard to argue that it covers unimproved land. Outside of those cases, the Federal Government has no explicit rights to land beyond those of any private landowner.
Now, per M’Culloch v. Maryalnd, you can then argue that the power to hold certain land is a power “necessary and proper” to fulfill other powers of the Federal Government. But, then, shouldn’t you have to show how, in particular, each tract of land so held is, in fact, being held in order to fulfill another power of the Federal Government? Land for, say, training soldiers can be reasonably covered as “necessary and proper” to the goal of raising and maintaining an army. But vast tracts of a state being used for no purpose at all?
Certainly, Article IV, Section 3 establishes the explicit power of Congress to dispose of Federally-owned lands, and thus would arguably include, by necessity, an implicit power to not dispose of them. However, said right explicitly does not “Prejudice any Claims of . . . any particular State.” So while outside the area of any state this right might be effectively absolute, it cannot overcome the claim of a state to eminent domain.
Now, under current doctrine, keeping land off the market is probably itself a “necessary and proper” act for the purposes of the power to regulate interstate commerce. But, given a more narrow reading of the Commerce Clause, it would actually be plausible that Utah has a case here.
March 29, 2010, 4:57 pmD.R.M. says:
Nope. Under the Constitution, the Federal Government requires the approval of the state legislature to acquire land within any state.
March 29, 2010, 5:00 pmCrazyTrain says:
Ding, ding, ding, ding, You win.
It can and it does. Utah never had a claim to the land at issue. The federal claims to the land existed before Utah was admitted to the Union.
March 29, 2010, 5:05 pmSlow says:
My thought has always been this…
1. Where is Utah getting the money to buy the federal government land? Even under eminent domain you have to pay a fair market value for it.
2. Development – what sucker is going to develop this? Utah seizes the land without an agreement from the federal government and the federal government does not do anything right away (say there is a sympathetic executive in place), who would buy this land from Utah, and who would underwrite any purchase?
There is a strong inkling that the seizure may be illegal – meaning the U.S. government will still have the superior property right. One can’t obtain proper title to federal land by adverse possession. So, if and when the federal government ever decided to take it back they could just take it, and would not have to reimburse the current occupier. Am I wrong about this?
I for one have not seen any good case made that a sate can seize federal property, has anyone else?
March 29, 2010, 5:07 pmG.R. Mead says:
Enclaves jurisidiciton actually varies quite a bit, and a number of federal buildings — (leased or owned makes no real difference) esp. in urban areas — have concurrent jurisdiction with the State. Our Naval bases (Florida) have maps of their physical areas in the Staff JAG office that have varying jurisdictional character in different areas in the physical confines of the same base, depending on the conditions at the time of purchase or cession of that portion.
March 29, 2010, 5:14 pmMatthew Reid Krell says:
That’s a pretty bold statement. I’ve looked over the relevant Constitutional text and I’m not convinced it’s as black-and-white as you want to make it. For example, Art. I, Sec. 8, cl. 17 is at best ambiguous. I mean, as one (possibly silly) example, while the text refers to “exclusive legislative authority” requiring the consent of the state legislature, we all know (whether we support it or not) that there are times when the states and Congress enjoy concurrent legislative authority (with the federal authority, of course, being supreme). This could be one of those situations. I’ll admit up front that I’m speculating completely, and have absolutely nothing to suggest that I’m correct other than my own sort-of-a priori reasoning. Do you have any authority to support your view?
All of that said, I think Floridan made my point better and more succinctly:
March 29, 2010, 5:14 pmjcm says:
Im a foreign lawyer. Do you make difference between property in use for public service, fulfill public duties , known as public domain( that way is called in civil law countries) and private domain, property as privates citizens? In some civil law countries , the private domain can be taken
March 29, 2010, 5:19 pmLaws also provide that if the land is not used for the purpose that justified the taking , it will return to the former owner. Of course after paying back the compensation
OrenWithAnE says:
How does that apply to National Forests, which are being used to promote various environmental goals?
March 29, 2010, 5:21 pmJay says:
No doubt the United States can choose to enter into agreements of various sorts with other governmental entities. For example, shoplifters at the PX may be prosecuted by the local DA rather than the USAO pursuant to an agreement between the two offices. But I thought the question was to what extent a state or locality could impose its laws on the US absent the federal government’s consent.
March 29, 2010, 5:24 pmSlow says:
We wish
March 29, 2010, 5:25 pmfirst history says:
….the power of the federal government to hold land is tightly limited by the constitution.
The Supreme Court, in KOHL v. U S, 91 U.S. 367 (1875) stated:
It seems pretty clear that Utah is trying to overturn 135 years or more of constitutional jurisprudence. Good luck.
March 29, 2010, 5:26 pmfirst history says:
See also;
March 29, 2010, 5:41 pmElliot says:
Aside from the legal wranglings, the move is another contribution to the expression of the dissatisfaction and distrust that is building towards Washington.
March 29, 2010, 5:50 pmChris Travers says:
You know, I have been thinking: This is a major reason why so much of the rural parts of the country seeks smaller government. Basically the Feds own a lot of land (USFS, BLM, etc) and the state cannot get any proper property taxes for that land. The Feds pay a token amount, and they obligate the state to provide emergency services etc. The states generally cannot claim the land bakc through eminent domain….. Hence my thinking is this is just a political ploy to say “look how bad the big ol’ Federal Government is!”
A more interesting question would be whether Utah could, say, issue an edict refusing to pay for firefighting and other emergency services on said parcels of federal land, except through money obtained from Congress.
These are just the opening shots in a power struggle which could get quite interesting.
March 29, 2010, 5:56 pmSpitzer says:
Interesting. I think it comes down to how the Feds got the land. If they purchased it with consent of the legislature of Utah (per Art I Section 8), then the Feds get to keep it and exercise authority over it (though there may be an argument that the Art I Section 8 limits land purchases to buildings such as military forts, dockyards, and other “needful buildings”, and not simply a park or wilderness). On the other hand, if it was Utah’s land, and the Feds seized it, then they would have violated Article IV.
But the answer is probably simpler: I am guessing that the Feds got the land in the Louisiana Purchase from France, and part of the law that gave Utah statehood kept the land in federal lands (by Utah’s consent, of course). In that case, Utah is screwed. After all, I don’t think Art I Section 8 governs the Feds’ possession of property per se, just its ownership of land purchased from a state.
March 29, 2010, 6:09 pmDilan Esper says:
I can think of one instance in our history of a state taking federal land. And it ended very badly for that state.
March 29, 2010, 6:13 pmEvan says:
Good point: this land was not “purchased by the Consent of the Legislature of the State in which the Same shall be,” so it’s not within the scope of Congress’s Article 1 Section 8 enclave powers. You’ll need to found any special Federal powers off Article 4 Section 3: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” But, is this an exclusive Federal power, or is it shared with the states? Does Utah law apply at all on these lands? I’d think it does – otherwise, most of the ranches in the state would be exempt from state law! (What Slow said about building codes, I’d guess, applies only to Federal enclaves.)
March 29, 2010, 6:14 pmSpitzer says:
Maybe Utah should establish a claim for adverse possession?
March 29, 2010, 6:14 pmThe Volokh Conspiracy » Blog Archive » Can a State Use Eminent Domain to Take Federal Land? says:
[...] Bainbridge and co-blogger Eugene Volokh ask whether states are permitted to use eminent domain to take federal land. The question is [...]
March 29, 2010, 6:17 pmShelbyC says:
Of course, no one disputes the fed’s power to maintain forts.
March 29, 2010, 6:18 pmJaimeInTexas (Jam) says:
J. Marshall implied powers nonsense.
I do not think that a State will be able to take Federal property with the use of Emminent Domain, especially if they granted the FedGov permission to do so. But, if the FedGov is not using the property in accordance to Art. 1, Sec. 8 I say let the State to condemn.
Which brings the 5th. Once the FedGov identifies the property they wish to acquire and the State grants permission for the purchase, the FedGov is then required to properly compensate the current owner.
Hopefully, the State first reads the Consitution to determine if the purpose of the property lines up with “… all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings”. And the SCOTUS should also invalidate any puchase made without a State’s consent or in violation of the Art.1,Sec.8 clause.
Not that I will hold my breath. It seems that the SCOTUS nor most politicians (I repeat myself) read the Constitution anyway.
March 29, 2010, 6:20 pmOwen H. says:
And the solution to that is to try and win the next election. Losing an election does not equal disenfranchisement.
March 29, 2010, 6:24 pmepluribus says:
Why could a state take vacant federal land but not improved federal land? The constitutional issues would be the same in both cases.
March 29, 2010, 6:27 pmDilan Esper says:
Of course, no one disputes the fed’s power to maintain forts.
1. They did back then.
2. It’s worth noting that federal power to purchase land (whether or not for forts) is an enumerated power.
March 29, 2010, 6:30 pmG.R. Mead says:
Ah yes, the famous Art 1, Sec 8 “environmental goals” power. Apart from that, do you maintain that Utahans love their own land less than, say, New Yorkers ? Or possibly even might be better stewards of it since they live on it ?
March 29, 2010, 6:31 pmRoger the Shrubber says:
Utah has taken a posturing step so idiotic that it might — might — draw attention away from my own Commonwealth of Virginia’s recent “legal efforts.”
Thanks for trying, in any event, Utah. It was a tall order, but I think you may have come through.
March 29, 2010, 6:35 pmepluribus says:
On the contrary. It’s another example of right-wing politicians seeking political advantage by pursuing claims that are constitutionally untenable. If they don’t know the claims are untenable, they are incompetent. If they know they are untenable but still pursue them, they are deceiving the public. Utah is well-represented in Congress. If the state needs federal land, let its senators and congressman pursue the matter through legitimate legislative channels, not by telling the public that they have a legal right to take it from the federal government when they clearly have no such right.
March 29, 2010, 6:36 pmfwb says:
The bigger question is whether the land held by the fed within the boundaries of any state is a constitutional holding. Note that the fed was not granted authority to hold land within the boundary of a state EXCEPT by purchase with the permission of the legislature thereof AND solely for the erection of needful buildings.
The fed has NO EMINENT DOMAIN power. None. Nada. Zilch. IF the fed has eminent domain power, the constitutional requirements to obtain a seat of government by cession of lands and for the purchase of other land for needful buildings are wholly unnecessary clauses in the Constitution. Reading the Constitution in that manner is claiming the Framers had no idea what they were doing.
The fed has no authority to take real property at all. Every taking of real property by the fed has been illegal. A state might use eminent domain and then sell to the fed.
Congress IS authorized to make rules and regs and dispose of territory. Was the land in question withheld as territory or later taken by the fed? If taken, the fed has no authority. If held as territory, a new can of worms is opened.
Can the fed withhold the land as a requirement of admission as a state? The answer is no. The concept of equality of the states denys this power to the fed. None of the first 13 states had to do anything other than ratify the Constitution in order to gain admission. Thus the only legitimate requirement for latter states must be ratification of the Constitution at the time of admission.
If the fed withheld the land as a requirement of statehood (even though this would be improper) then when the borders are set for a new state, the land retained by the fed must be still classified as territory. Persons living in territories do not have full citizenship ala PR. If those persons have voted in various elections, etc, fraud has been committed. Persons living in territories are not citizens of the state since they do not live in a state. Remember the land was retained as a territory.
If the land withheld is territory what purpose does Congress have in withholding the land from the state in which said land is situated? Neither Congress nor any other owner of said land can form another state from that land. That action is prohibited without state permission.
Congress may dispose of the land when so desiring or may keep the land as territory, making needful rules and regs about the territory. Nothing more is granted.
So in truth Utah already owns the land in question and needs only to exert its sovereignty. Land withheld as a condition statehood was withheld improperly in violation of state equality. Land taken after statehood was taken unconstitutionally because the federal government has no eminent domain power. AND any land used by the fed within state borders can only be used for needful buildings such as shipyards, forts, arsenals, etc.
Actually read the Constitution?????
March 29, 2010, 6:38 pmepluribus says:
The land in question was not purchased from Utah. It was acquired from Mexico by war and treaty between 1846 and 1848. Utah didn’t even exist when the United States acquired the Mexican cession. If Utah doesn’t think the U.S. should keep the land, how would they like the government to give it back to Mexico?
March 29, 2010, 6:39 pmepluribus says:
Adverse possession does not run against any government, state or federal.
March 29, 2010, 6:41 pmG.R. Mead says:
The question is whether in the case of the underlying sovereignty in the land — absent a constitutional cession or purchase by the consent of the State– whether Congress NEEDS to consent for a tklaing to be effective or merely has the arguable power to effectively object or overrule politically and legislatively to stop it in such instance (under supremacy principles)– as with dormant commerce power cases.
I think Utah has a point and Congress — if it wishes to preclude the action — must act politically to stop it. That makes the conflict fully ripe and politically clear for the next election cycle — when the problem can be resolved one way or the other — otherwise the judiciary says it can’t happen, period and the political wheels get all bogged down — like with the abortion issue, because there is no longer a operating political forum in which to work out all the complex issues involved.
March 29, 2010, 6:43 pmgeokstr says:
IANAL, so I’m having a bit of trouble understanding this. I thought under Kelo and other rulings, a state or local government could take property under eminent domain if it would help them increase their tax base. If Utah owned the land with all the coal on it that Clinton basically sealed off from mining, it would seem that their tax revenue could be expanded considerably by leasing the land for mining.
Unless peace of mind for liberals is of greater value to Utah than money, of course.
March 29, 2010, 6:44 pmG.R. Mead says:
IF.
March 29, 2010, 6:49 pmShelbyC says:
I can only find the part that says they can purchase land for forts (and Magazines, Arsenals, dock-Yards, and other needful Buildings) with the consent of the legislature. Care to edumecate me further?
March 29, 2010, 6:49 pmJay says:
There’s a distinction between saying that a state has jurisdiction to apply its criminal law to a private citizen who commits a crime while happening to be on federal land within that state (absent direct conflict, probably ok), and saying that a state may apply its law against the United States itself. That’s the problem with all the “but if state law doesn’t apply at all, x absurd result would occur!” hypos.
March 29, 2010, 6:50 pmDilan Esper says:
Shelby:
Check the spending power.
March 29, 2010, 6:53 pmJay says:
Well, I guess that’s a question, but I’m not really sure what the legal or historical basis for your rule would be. Every time some city council next to a military base got tired of soldiers fighting in bars, Congress would have to pass a new law barring them from taking the fort. Would that only be valid until the next year, at which point the town could try again? How long would Congress have to act? I guess one point in this plan’s favor is that it would keep Congress from doing anything else.
March 29, 2010, 6:56 pmarbitrary aardvark says:
It’s a political conflict more than a legal one.
March 29, 2010, 7:00 pmMaybe the feds would agree to let the land be taken. They aren’t doing much with it, and they could use the money. Does Obama want to get into a state’s rights conflict before an election? (maybe he does.) Maybe utah thinks that if they go to war with the feds (a war of words) and lose, they’ll get a lot of marshall plan type money to rebuild with. Almost any way it plays out is a win for utah leaders.
How it plays with undecided moderates nationally might depend on how it’s handled.
first history says:
The Feds pay a token amount…..
The Payments In Lieu of Taxes (PILT) are not token amounts. They totaled $381 million in FY 2009, a 64% increase over FY 2007. Utah was among the highest recipients, receiving over $33 million in FY 2009. Other large recipients were Idaho ($26 million); Alaska ($25 million); Arizona $31 million); California ($34 million); Colorado ($28 million); Montana ($28 million); Nevada ($23 million); New Mexico ($37 million); and Wyoming ($25 million).
March 29, 2010, 7:08 pmShelbyC says:
Maybe I’m dense, but I can’t find anything more specific than the General Welfare clause. Now maybe I misunderstood, but I took your comment “It’s worth noting that federal power to purchase land (whether or not for forts) is an enumerated power.” to mean something more specific, appoligies if I’m mistaken.
In any event, the fact that fed’s exclusive jurisdiction is limited to forts and other such places would imply that any land purchased under the spending power would be subject to some state control. It’s not clear that that control excludes the power of eminent domain, although I admit that that seems counter-intuitive. But states can exercise some control over the feds. It’s hard to imagine that, say, federal poultry inspectors would be exempt from speeding laws on the way to conduct an inspection.
March 29, 2010, 7:10 pmElliot says:
“And the solution to that is to try and win the next election. Losing an election does not equal disenfranchisement.”
I agree losing an election does not equate to disenfranchisement.
There are rarely single solutions to such issues. Winning the election would certainly be an expression of dissatisfaction. But there remain many other avenues of legitimate expression available.
March 29, 2010, 7:18 pmDilan Esper says:
Maybe I’m dense, but I can’t find anything more specific than the General Welfare clause. Now maybe I misunderstood, but I took your comment “It’s worth noting that federal power to purchase land (whether or not for forts) is an enumerated power.” to mean something more specific, appoligies if I’m mistaken. In any event, the fact that fed’s exclusive jurisdiction is limited to forts and other such places would imply that any land purchased under the spending power would be subject to some state control.
Or maybe it just means that Congress can buy land as it sees fit to promote the general welfare, that the Supremacy Clause prohibits states from placing any impediments on that power, and that because of the sensitive nature of military installations, states were given some limited concurrent powers with respect to such facilities.
But hey, just because that’s the way the document has been interpreted for over 2 centuries doesn’t mean it is right, does it?
March 29, 2010, 7:24 pmCrazyTrain says:
The Fifth Amendment presumes otherwise. But then what would the author of that amendment know about the Constitution?
March 29, 2010, 7:24 pmElliot says:
Could be. But right wing politicians can express dissatisfaction. There is no reason to think something is not an expression of dissatisfaction because there are opposing positions. Popular movements, attitudes and expressions do not have to be vetted by anyone.
March 29, 2010, 7:26 pmShelbyC says:
I’m not sure I understand the “concurrent powers” reference. My reading suggests that the states do not have concurrent powers wrt such facilites (beyond the ability to consent refuse consent to their purchase), which would suggest that they have some concurrent powers over federal lands that are not such facilites. I’m not sure why these concurrent powers wouldn’t include eminent domain (They may, I can imagine arguments either way). Now if you know of two centuries of precedent that suggests why the constitution would allow states some control of federal land, but not eminent domain, please spill it. I ain’t got the schmancy legal education you got, ya know :-).
March 29, 2010, 7:35 pmepluribus says:
Art. IV, Sec. 3, cl. 2:
“The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. . . .”
From the inception of the Constitution (even before), the United States has owned territory and property, held it, made rules for it, and, when appropriate, disposed of it. Virtually all of the United States except the original thirteen states was at one time owned by the federal government. It acquired some of this through cessions from states (e.g., the old Northwest Territory, which was acquired when New York, Connecticut, and Virginia ceded its claims to land beyond the Appalachians to the United States), but most by acquiring it from foreign nations: e.g., the Louisiana Purchase (France), Florida (Spain), the Mexican Cession (Mexico), the Oregon Country (U.K.), Alaska (Russia), Hawaii (the Kingdom of Hawaii), the Virgin Islands (Denmark), etc. The suggestion that the United States government cannot own territory and property is not only constitutionally absurd; it is also unhistorical. I am saddened (though not surprised) that so many who claim to venerate “originalism” as a constitutional doctrine are so ignorant of our history, which is of course essential for any sort of “originalism” to have even a chance of making sense.
March 29, 2010, 7:41 pmShelbyC says:
Or to be a little clearer, are you suggesting that if they use land for other purposes than forts, etc, they can buy land and exercise exclusive legislation over it without the consent of the state legislature? That seems a little funny, I’d like to see if you can provide support for such a premise if that’s what you’re arguing.
March 29, 2010, 7:41 pmShelbyC says:
Nothing in the whole constitution, not the supremacy clause or anything, can prejudice whatever claims they’re refering to, either for the States or the Feds. Interesting.
March 29, 2010, 7:50 pmDilan Esper says:
Or to be a little clearer, are you suggesting that if they use land for other purposes than forts, etc, they can buy land and exercise exclusive legislation over it without the consent of the state legislature? That seems a little funny, I’d like to see if you can provide support for such a premise if that’s what you’re arguing.
I don’t know what you mean by “exclusive” in this context. Congress has the power to preempt state regulation with respect to federal land. With respect to military bases acquired with the consent of the state legislature, complete preemption requires the approval of the legislature. With respect to other properties, Congress can preempt as much or as little as it wants to.
It’s pretty simple, and apparently sometime in libertarian-land, people got all fouled up about federal lands.
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March 29, 2010, 8:27 pmShelbyC says:
Interesting. So if the feds wanted to purchase a chuck of land, ensure that the state had 0 control over it, and use half of that land for a park, and the other half for a fort, they’d need the state’s consent for the half with the fort, but not for the half with the park? What if they let the state exercise some degree of control over the fort, like setting speed limits, so the legislation was no longer exclusive? Would they no longer need the state’s consent? What if the half with the park had “needful buildings” on it? That strikes me as an odd way of interpreting the text, but hey, if it’s been done that way for two centuries…
March 29, 2010, 8:37 pmfirst history says:
Or to be a little clearer, are you suggesting that if they use land for other purposes than forts, etc, they can buy land and exercise exclusive legislation over it without the consent of the state legislature? That seems a little funny, I’d like to see if you can provide support for such a premise if that’s what you’re arguing.
See KOHL v. U S, 91 U.S. 367 (1875):
See also UTAH POWER & LIGHT CO. v. U S , 243 U.S. 389 (1917):
March 29, 2010, 8:40 pmDilan Esper says:
Interesting. So if the feds wanted to purchase a chuck of land, ensure that the state had 0 control over it, and use half of that land for a park, and the other half for a fort, they’d need the state’s consent for the half with the fort, but not for the half with the park? What if they let the state exercise some degree of control over the fort, like setting speed limits, so the legislation was no longer exclusive? Would they no longer need the state’s consent? What if the half with the park had “needful buildings” on it? That strikes me as an odd way of interpreting the text, but hey, if it’s been done that way for two centuries…
Well, those are hypotheticals that have nothing to do with the way land is actually acquired by the federal government. The way things have ACTUALLY been done for two centuries is in no way odd, because the federal government doesn’t go about acquiring land in incredibly weird ways to generate test cases.
March 29, 2010, 8:56 pmShelbyC says:
Thanks, first history. :-).
March 29, 2010, 9:04 pmRJP says:
Perhaps the right analogue is habeas corpus, and the Supreme Court’s decision decision in Tarble’s case (holding that a state court cannot issue a writ of habeas corpus directed to a federal custodian).
March 29, 2010, 9:12 pmMark Field says:
Even sadder, they’re reinventing the arguments used by slaveholders to justify lack of federal control over the Territories.
March 29, 2010, 10:36 pmShelbyC says:
And if slaveholders used them they must be bad.
March 30, 2010, 10:05 amRoger the Shrubber says:
Check out the Assimilative Crimes Act to see how the feds have actually handled that.
March 30, 2010, 10:17 amMark Field says:
In a word, yes. These were not neutral arguments developed from a philosophical perspective about the nature of government, they were propaganda designed to uphold slavery as an institution.
March 30, 2010, 10:43 amepluribus says:
March 30, 2010, 11:09 amShelbyC says:
Oh come on. Holy logical fallacy, batman.
March 30, 2010, 11:45 amDilan Esper says:
In a word, yes. These were not neutral arguments developed from a philosophical perspective about the nature of government, they were propaganda designed to uphold slavery as an institution.
It’s even worse than this. Some slavery-protective rules are definitely built into the Constitution. For instance, that is one of the reasons the Senate is set up the way it is. And it’s definitely one of the reasons why the Congress is limited to enumerated powers. There’s nothing wrong with conservatives or libertarians arguing that these structures should apply and be adhered to, even though they may have facilitated the protection of slavery. They are in the Constitution.
But there’s a bunch of arguments that slave state lawmakers basically fabricated later on, which were not a part of the original deal and which probably would have caused the North to bolt had they been inserted into the document. For instance, Calhoun’s doctrine of state nullification, or the right of secession. And a lot of the “state sovereignty” arguments that go beyond what is in the text fall into this category. And in those cases, the fact that the argument was basically fabricated to defend slavery or Jim Crow is quite relevant to its validity.
March 30, 2010, 2:38 pmepluribus says:
I agree with Dilan. I am now reading Don Fehrenbacher’s The Slaveholding Republic, in which he shows that the Constitution was originally neutral on the subject of slavery (neither in favor of it nor against it), but in the early 19th century, government policies became more and more protective of slavery. The late Prof. Fehrenbacher was a great historian (author of the definitive study of the Dred Scott case), and this is a very informative book.
March 30, 2010, 3:22 pmJaimeInTexas (Jam) says:
With this unlimited power is given to the FedGov and all the other words in the document amount to niceties that might be a good idea.
It “general Welfare” means as suggested above, why follow with a list of enumerations? Or, maybe the “general Welfare” is accomplished by limiiting the FedGOv to those enumerations?
March 31, 2010, 12:43 pmJaimeInTexas (Jam) says:
Correct my history if I am wrong:
When the united Colonies successfully defended their independence and concluded the Treaty of Paris of 1784, some lands were ceded by England to the new Republics to be held in common. Virginia also ceded some of her western lands to satisfy some their war debt.
March 31, 2010, 12:49 pmThe Volokh Conspiracy » Blog Archive » “Can a State Take Federal … | Federal Tort Claims says:
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