The Federal Government's "Police Power" and the Takings Clause: Part I

What is the source of the federal government's "police power" to "take" property without "just compensation"?


Last week, Judge Starr (NDTX) ruled that the federal government lacks a general "police power" to "take" bump stocks without providing "just compensation." He gave the defendants another opportunity to "explain which enumerated power justifies the federal regulation and whether it allows a taking without compensation." Is the source the Commerce and Necessary and Proper Clauses? Judge Starr wrote, "If the federal government opts for the commerce power, it should discuss the limitations in Lopez and Morrison."

The federal government may have some difficulty with this order. The federal courts routinely refer to a federal "police power," but do not specify the source of that authority.

Consider Kam-Almaz v. U.S. (Fed. Cir. 2012). In this case, an ICE officer seized the plaintiff's laptop at an international airport. While the computer was in the government's custody, "its hard drive failed, destroying much fo Kam-Almaz's business software." The Plaintiff brought a takings claim against the government, and sought compensation for "lost business contacts." The federal government contended that it "lawfully seized the laptop pursuant to its police power." The Federal Circuit agreed:

Our precedent is clear: "Property seized and retained pursuant to the police power is not taken for a 'public use' in the context of the Takings Clause." AmeriSource Corp. v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008); see also Acadia, 458 F.3d at 1331–32. . . .

Lawful seizures performed pursuant to such authority necessarily fall within the government's power to police the border. The "police powers . . . are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions." The License Cases, 46 U.S. 504, 583(1847) (opinion of Taney, C.J.). As we have noted, "[a]lthough the precise contours of the principle are difficult to discern, it is clear that the police power encompasses the government's ability to seize and retain property to be used as evidence in a criminal prosecution." AmeriSource, 525 F.3d at 1153.

The ellipses in the License Cases citation are misleading. The omitted word are "…the police powers of a State are…" Here is the full passage from Chief Justice Taney's opinion:

It has been said, indeed, that quarantine and health laws are passed by the States, not by virtue of a power to regulate commerce, but by virtue of their police powers, and in order to guard the lives and health of their citizens. This, however, cannot be said of the pilot laws, which are yet admitted to be equally valid. But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offences, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same powers; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion.

Does the federal government have "inherent" powers? Lopez tells us no: "The Constitution creates a Federal Government of enumerated powers." But there is at least one exception to this rule. Nishimura Ekiu v. U.S. (1892) held that Congress's power to exclude aliens is "inherent in sovereignty." The Court explained:

 "It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States this power is vested in the national government, to which the constitution has committed the entire control of international relations, in peace as well as in war."

The language in Nishimura Ekiu is remarkably similar to Taney's analysis in the License Cases. But that holding stands till this day. Even Justice Scalia—usually a stickler for the separation of powers—acquiesced to this doctrine. In Arizona v. United States (2012) admitted that "there was no need [for the Framers] to set forth control of immigration as one of the enumerated powers of Congress."

I think these analyses are wrong, and Lopez is right. Rather, Congress's implied powers under the Necessary and Proper Clause can be read to support an exclusionary power. (I articulated this position in a 2018 essay).

But for present purposes, let's assume that a power to exclude aliens may be an "inherent" power. Perhaps that authority would also embrace the power to seize property at the border. In that sense, Kam-Almaz may have reached the right result for the wrong reason. But the inherent power over immigration would not support a "police power" for the federal government to seize property within the borders.

A federal "police power" must come from another one of Congress's enumerated powers, including the Commerce Clause and the Necessary and Proper Clause. I will discuss both of these provisions in Part II of this series.

NEXT: Today in Supreme Court History: April 6, 1938

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  1. “The federal courts routinely refer to a federal “police power,” but do not specify the source of that authority.”

    The source of that “authority” is absurdly simple, though indirect: The federal judiciary is nominated and confirmed by federal officers.

    You expect people to nominate and confirm judges who will rule against them? The truth is, it’s no better for a man (or level of government) to choose the judge in his own case, than it is for him to be the judge in his own case. Either way produces predictable bias.

    This was somewhat ameliorated prior to the 17th amendment, because the Senate was, to some extent, subject to at least theoretical control by state legislatures. But with the ratification of the 17th amendment, the states’ last leverage over the federal judiciary vanished, and not long after the march towards the all powerful federal government began.

    It’s the biggest structural flaw in the entire Constitution, as amended.

    1. Brett,

      I’d say that 17th Amendment horse you keep beating is long dead, but I’m not sure it was ever alive, in the sense that having state legislatures pick Senators was ever a sensible idea.

      State legislatures are often corrupt, often gerrymandered. Even if not, that they would make wiser choices than the voters is fantasy.

      1. I don’t think the contention is that the state legislatures would make “wiser” choices, but that without 17A, the state governments would have more influence on the US Senate and thus act as a check on the Federal courts out of self interest.

        1. I think the only extent that would really work is if state legislatures had the power to recall Senators too. As a practical matter, the State legislature didn’t determine the Senator, the Senator determined the makeup of the state legislature more often than not as they essentially acted as an electoral college on the Senate election once every six years.

          1. I wasn’t suggesting it would really work, just that, that was what Brett was contending as opposed to the nebulous “wiser” choice straw man Bernard attempted to put down.

      2. Would they make wiser choices? Maybe, maybe not.

        What choices they would make more of than currently, though, would be to uphold the state sovereignty more than party hackery from Dems or the GOP, because their role there would be to represent the *state* through the voters rather than the voters through the state.

      3. Never said anything about “wiser”. Rather, more in the interest of the state side of state/federal conflicts.

        Right now the federal judiciary is chosen without any state government input, so it’s hardly shocking that it keeps ruling in such a way as to continually expand federal power at the expense of the states.

        Prior to the 17th amendment the Senators had to take into account that there was at least the theoretical possibility of the state governments getting pissed off and retiring them. And I believe that moderated their behavior in many regards.

        1. But if the voters want their Senators to restrain federal power they are capable of electing Senators who promise to do so, and retiring them if they don’t.

          If the voters prefer otherwise, why should the legislature countermand them?

  2. General welfare to the rescue of border control? It’s certainly been core to the rhetoric about it over the many decades.

  3. The “power to exclude aliens ” is an enumerated federal power derived from Congress’ power to set uniform rules of Naturalization… not an inherent one.

    1. Also the importation and migration clause. While importation was almost certainly a reference to the slave trade, it make no sense to read migration as being about slavery and/or the slave trade.

      1. While importation was almost certainly a reference to the slave trade

        I’m not so sure — lots of indentured servants were “imported” into New England.

        1. Just like the Nazis coveres up the Holocaust, the framers went out of their way never to use the word “slavery”, because they knew they were engaging in a genocide of black people, yet we all know that keeping it legal was a precondition of constitutional ratification.

          Given that history, we really shouldn’t pretend their euphamisms meant they really weren’t talking about slavery.

          1. Goodwin’s Law…well, that was quick.

            While the use of euphemisms about the South’s particular institution goes back a long time, I don’t think you understand what a genocide is.

            1. Of course it was a genocide.

              And as for Godwin’s Law- 4 million blacks were enslaved at the time of the Civil War. Probably 7 or 8 million overall in the US over the course of time. I’d say that compares to the 6 million murdered by the Nazis.

              The fact is, if there was EVER a proper comparison to Naziism, it is the slaveholders who founded this country and enshrined slavery into its fabric. And as I said, just like the Nazis, they knew what they were doing was evil, so they did everything they could to cover it up.

              1. Do you know what Goodwin’s Law being invoked entails? It means that the comment thread has degenerated to a point of uselessness. Which it pretty much has. That’s why you don’t use silly Nazi comparisons. Hitler was a vegetarian, so thus all vegetarians are evil, amiright?

                1. David Weigel, Reason magazine: “Godwin’s law itself can be abused as a distraction, diversion or even as censorship, fallaciously miscasting an opponent’s argument as hyperbole when the comparisons made by the argument are actually appropriate.”

          2. One needs to remember that half of telephone linemen used to die on the job, and that while commercial fishing remains dangerous to this day, back then dories would routinely come drifting ashore with frozen-to-death fishermen in them.

            I’m not defending slavery, but I’d be damn careful about using the word “genocide” without bringing in the context of working conditions in the North at the time. Unlike a factory worker, slaves had a cash value and hence represented a financial loss if injured or killed.

            1. Despite having a “cash value”, huge numbers were, in fact, killed, either through disease and bad living conditions, lynchings, being thrown overboard on slave ships, being shot because they escaped, overwork, or extreme torture and punishment.

              Yeah, it was a genocide. We just can’t admit it for the same reason Patriots fans can’t admit spygate.

              1. Definition of genocide:

                The systematic and widespread extermination or attempted extermination of a national, racial, religious, or ethnic group.
                n. The systematic killing of a racial or cultural group.
                n. The systematic killing of substantial numbers of people on the basis of ethnicity, religion, political opinion, social status, or other particularity.

                Oh, nobody doubts that there were lots of deaths…but what there wasn’t was the systematic extermination…why? Because slaves were valuable property, though with some acceptable losses along the way of transport and to be disposed of after their usefulness ended. The whole point was to keep enough of them alive to work and breed, especially after the banning of the international slave trade. Keeping blacks alive to breed was not systematic extermination. Trust me, if America wanted to wipe blacks off the face of the Earth, they could have tried harder and they would have ended up the Indians…noting but a remnant of remnant.

                You’re not arguing with us, you’re arguing with the dictionary. Good luck with that!

                1. The Nazis kept the Jews around to work for awhile before killing them too, you know.

  4. Looking forward to the rest of the series. I’m always interested in these questions of where the government derives it’s various powers.

    Also, Mr. Blackman, have you written a response to “Beyond Originalism”? I assume you’re against it, but as someone more deferential to the executive branch than any of the other writers I’ve seen respond to it, I’d be interested in seeing your take.

    1. l believe he responded to it a few days ago on this very blog.

      1. Thank you. I read mostly on Google News, so I sometimes miss articles if they don’t come up in my feed

  5. The government would be smart to settle the bump-stock takings cases and live to fight another day. It’s not going to turn out good for them.

    1. I wouldn’t bet on that. The courts are barely willing to uphold the 2nd amendment where the politics of it basically mandates upholding it.

      Upholding it on a point the NRA already caved on? Not likely. About as likely as the courts up and deciding that the ban on ownership of new machine guns is unconstitutional. (Another case where the NRA caved, and threw some gun owners under the bus.)

      1. I am not saying they can’t ban bump-stocks. I am saying that it makes no legal sense to be able to take them without compensation. The NRA even took this position. If this was allowed under some judicially crafted exclusionary rule private property rights would be eviscerated in this country—especially property rights in things that whoever is in charge declares undesirable. This could be anything from firearms that aren’t protected by the Second Amendment to gasoline powered automobiles.

        Now if this was merely an enforcement of the FOPA machine gun ban it would be a different story because you don’t have any rights in something that was already illegal. But every court that has upheld the rule held that the ATF was not interpreting and enforcing the FOPA ban but instead created new legal duties when it promulgated the Final Rule. The ATF used its delegated legislative authority from Congress. The ATF acknowledges as much in the rule stating that current possessors are “not acting unlawfully” unless they fail to dispossess themselves of their property by the effective date. The effect is the same as if Congress has passed a new ban without grandfathering in preexisting owners. And courts have held this in spite of the AFT asking that the law be struck down if it wasn’t an interpretive rule that was enforcing the existing law.

        1. I believe there’s caselaw that the takings clause doesn’t apply to contraband. So they are likely to win in the higher courts. This judge’s machinations aren’t going to be relevant.

          1. The question is whether the takings clause applies to “contraband” that wasn’t contraband at the time it was acquired. The theory that you have no property rights in something illegal makes some sense for things that were illegal at the time you acquired them, but it really makes no sense where the government up and makes it illegal to possess something that was unambiguously legal at the time you came into possession.

            1. I will rephrase. I believe there is caselaw that the takings law does not apply to contraband, whether or not it was contraband at the time it was acquired.

              I mean, it’s 80 years old or older now, but it does exist.

              1. I might add that while Andrus v. Allard involves slightly different facts, it basically rejected the exact distinction being put forth here. People who had purchased trophy eagles for resale before the federal government banned their sale sued under the takings clause because it wasn’t fair to apply the law to them without just compensation. The court rejected that argument emphatically. “We hold that the simple prohibition of the sale of lawfully acquired property in this case does not effect a taking in violation of the Fifth Amendment.”

                Basically this is the line between a substantive regulation and a taking. A taking is where the government singles out your property and expropriates it for some specific public use. A substantive regulation is a generally applicable rule that everyone has to abide by. Taking YOUR bump stock so that, say, the local police department can use it in the coronavirus emergency would be a taking. Prohibiting bump stocks is a regulation. There’s no “fairness principle” where just because you bought contraband before it became contraband you get your money back. Dem’s the breaks.

                1. Doesn’t Andrus v. Allard say that the prohibition on sale does not effect a taking so long as the person still possesses other valuable rights–the like right to possess, use, and dispose of the property?

                  The Supreme Court solidified this in Lingle when it held that the takings law aims to “identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.”

                  Unlike Andrus, bump-stock owners have no rights left in their property and have been permanently ousted from their domain.

                  1. Lingle doesn’t overturn the rule on contraband though.

        2. “Now if this was merely an enforcement of the FOPA machine gun ban it would be a different story because you don’t have any rights in something that was already illegal.”

          In a tautological sense, that if you have a right to it, the law making it ‘illegal’ is invalid. The government could enact a law making ownership of printing presses illegal, but that wouldn’t extinguish your right to own them, and you wouldn’t be due compensation after giving them up, it would be an unconstitutional law.

          But the judiciary are largely hostile to the 2nd amendment, they will almost always fail to uphold it unless enormous pressure is brought to bear. So it wasn’t startling that the courts ruled as they did in this case.

          1. Unless there’s a Second Amendment right to own machine guns (and as of now and for the foreseeable future, there isn’t one), there isn’t a Second Amendment right to own a device that turns your gun into a rapid fire weapon.

            That’s not “hostility to the Second Amendment”. That’s straightforward application of current doctrine.

            1. The 2nd amendment would hardly secure a well regulated militia, if the arms you were entitled to bear weren’t militia arms. If the government doesn’t want the people to be constitutionally entitled to keep and bear machine guns, they need to stop issuing them to their own soldiers.

              1. That’s not current doctrine, though. It’s a theory of the Second Amendment, but it isn’t the operative theory.

            2. “That’s not “hostility to the Second Amendment”. That’s straightforward application of current doctrine.”

              But what if the doctrine itself stems from hostility to the Second Amendment?

              Note: I’m not sure if you are referring to Heller here, or earlier cases on the NFA.

    2. I think it would be cheaper to settle than pay for the lawyers.

      They weren’t that common and only cost $100-$150.
      I doubt it would take more than $10K-$20K to pay off everyone who turned one in.

      And $10K-$20K goes real fast when you are paying lawyers….

      1. I think the issue is that you would need an appropriation to do that. And you’d be hard put to get it, because the confiscation was contrary to the statute, and a statute that would authorize it probably couldn’t pass.

  6. ” I am saying that it makes no legal sense to be able to take them without compensation. ”

    Have Republicans, conservatives, and faux libertarians finally found some reparations they do not reflexively oppose?

    1. “Reparations” are where somebody who has been wronged is made whole by the person who wronged them. Republican opposition to ‘reparations’ is due to the fact that it is proposed to give the ‘reparations’ to people who merely happen to look something like the long dead people who were wronged, at the expense of people who merely happen to look something like the long dead people who wronged them.

      This sort of pseudo-reparations is, morally speaking, of the same character as the lynch mob that ride out to hang some random black upon hearing that some other black may have committed a crime: It cares not a whit about individual guilt or innocence.

      It’s racist to its core.

      1. The United States government enforced slavery for many years, and engaged in racial discrimination for many more years.

        Quit while you’re behind, Brett.

        (Or keep going. Your record on birtherism doesn’t make me optimistic about your good faith or self-awareness with respect to racial issues.)

        1. I’ll quit when I end up behind, Arty.

          The last slave alive during the time the US government enforced slavery, died some time in the middle of the last century. And I oppose your ‘reparations’ specifically because I’m opposed to racism, and they’re racist.

          1. Are you convening a meeting of Birthers Against Racism?

        2. Rev so gets into his fake persona, he has to “fake it till he makes it”.

          Public support for reparations according to YouGov: Opposition to reparations for the descendants of slaves is overwhelming, with 68% of the public against it and only 15% in favor. Asked in a separate survey whether the slaves themselves should have received compensation after the Civil War, 37% of the American public said yes but 31% said no.

      2. I like to argue for the right to subrogation of reparations.

        One White male from the North died for every ten slaves that were freed. Two of my Great-Great-Grandfathers went down to free the slaves, one came back without his foot and the other didn’t come back at all.

        All of the inter-generational economic arguments apply equally to me — my Great-Grandmother was orphaned as a direct result of this. And why wouldn’t the principle of subrogation apply?

        So we give reparations to the decedents of slaves, and then force them to turn around and hand them to the decedents of those who freed them from slavery. Or perhaps we drop the whole thing…

        1. You’re willing to ‘drop the whole thing’ with respect to reparations?

          That’s mighty white of you.

          Does it bother Prof. Volokh that his blog attracts so many bigots? Or does he just figure it’s unavoidable if you operate a right-wing blog . . . much like the ‘next civil war,’ ‘Second Amendment solution,’ and ‘coming race war’ comments?

          1. re: “Does it bother Prof. Volokh that his blog attracts so many bigots? ”

            It seems to me that he’s been very tolerant of you.

  7. As to _Kam-Almaz v. U.S._, there was an interesting SCOTUS case a few years back involving the removal of gas tanks from vehicles to search for drugs being smuggled inside the tanks.

    While it involved the 4th Amendment appeal of someone found to have done so, the government conceded that they would be liable for any damage to the vehicle that occurred as a result of this. Assuming it could be proven that the government damaged Kam-Almaz’s hard drive (and that would be hard to do, as hard drive failure is random), why wouldn’t that apply here?

    1. Can you identify the case you’re referring to?

      1. United States v. Flores-Montano, 541 U.S. 149 (2004)

        Damn, DuckDuckGo is getting nearly as good as LEXIS….

        1. The government conceded that the person would be able to file a claim under the FTCA. I don’t see any concession that this opportunity is constitutionally required (or even that the government wouldn’t contest the claim), so I don’t think it resolves the issue here, or even sheds much light on it. Or am I missing something?

  8. I think the judge here is confusing two very different things:

    1. A legislative power, full autochthonous legislative sovereignty and power to legislate, subject only to express limitations

    2. The executive power to arrest, search, seize, and do other police-like things.

    The Federal Government lacks a legislative police power. It can only legislate in those areas specifically enumerated. But it has an executive police power. When it has enacted a valid law in the areas where it can legislate, it can enforce that law through searches, seizures, and other police-like actions.

    Whether it has power to prohibit bump stocks is a question of the extent of the Commerce Clause subject to e.g. the Due Process Clause and 2nd Amendment. But if its limited enumerated legislative powers include the power to enact a valid legislative prohibition on bump stocks, and Congress has in fact so acted (a question here), then it certainly possesses the executive power to seize them without compensation.

    1. How irritating: you made exactly the point that I was going to.

    2. How does all of this square with Supreme Court precedent?

      “Instead of addressing a challenged regulation’s effect on private property, the ‘substantially advances’ inquiry probes the regulation’s underlying validity. But such an inquiry is logically prior to and distinct from the question whether a regulation effects a taking, for the Takings Clause presupposes that the government has acted in pursuit of a valid public purpose. The Clause expressly requires compensation where government takes private property ‘for public use.’ It does not bar government from interfering with property rights, but rather requires compensation ‘in the event of otherwise proper interference amounting to a taking.’ First English Evangelical Lutheran Church, 482 U.S., at 315, 107 S.Ct. 2378 (emphasis added). Conversely, if a government action is found to be impermissible—for instance because it fails to meet the “public use” requirement or is so arbitrary as to violate due process—that is the end of the inquiry. No amount of compensation can authorize such action.
      Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 543, 125 S. Ct. 2074, 2084, 161 L. Ed. 2d 876 (2005).

      I mean the police power has never been a defense to a permanent physical taking of real of tangible property. The key words here being permanent and tangible. Isn’t the question really whether an individual had preexisting property rights–i.e. the right of possession–under their state’s respective property law? Since most states didn’t have any type of restriction on this type of thing it comes down to whether the Federal Government did. As Holmes points out, “the ATF acknowledges as much in the rule stating that current possessors are “not acting unlawfully” unless they fail to dispossess themselves of their property by the effective date.”

      1. Does the takings clause apply to contraband?

        1. I would say only in cases where the contraband existed legally prior to the taking. If you obtain it after it was already contraband it should not apply because it was already in effect. But changing the rules to make it contraband and then taking it without applying the clause you have essentially created a law and then charged someone with a violation of that law from before it was in effect.

          1. You can argue it should mean that, but I don’t think that’s consistent with the caselaw.

    3. ReaderY I’m going to have to disagree with you at your conclusion “then it certainly possesses the executive power to seize them without compensation.”

      Simply put this is effective justification for the federal government to seize any property. I agree that they have the legislative and executive power to ban bump stocks should they so choose. They do not however, because of the separate and explicitly detailed clause regarding just compensation, have the power to seize it without said just compensation.

      The quibbling over whether or not it applies only to real estate can be answered in rulings regarding other property seized and compensation required. Otherwise there wouldn’t be cases regarding seized cash and vehicles when no criminal charges were filed, or when charges were dropped.

      It would also lend to the idea that you can create a law and retroactively charge someone for violation of the law prior to it’s existence. Which is the concept here if you truly think that outlawing an existing and otherwise lawful item would justify taking without just compensation.

    4. I’d argue that you are confusing police power with executive power.

  9. I remember long ago when a professor once told me “in America the government cannot just take your personal property without providing due process or compensating you…” Didn’t seem like too controversial of a subject back then. But then again that was in a more sane time.

  10. The ellipses in the License Cases citation are misleading.

    I don’t think they are misleading. Yes, the actual sentence says,

    But what are the police powers of a State?

    But the answer given, immediately after the question, is:

    They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. (emphasis added)

    Since the federal government is a sovereignty, it has police powers, is what this says. States have police powers also because they, like the federal government, are sovereignties, and all sovereignties have it.

    That seems to be the argument, anyway.

    1. In theory, this is a federal republic of sovereign states — the states are sovereign, the Federal government only has those powers that the states have ceded to it.

      Practice is different, but in theory, the US Constitution enumerates those powers that the states have ceded, with the remainder being retained by the states.

      1. “In theory, this is a federal republic of sovereign states — the states are sovereign, the Federal government only has those powers that the states have ceded to it.”

        Many people say that, but that’s not quite right.

        Instead, this is a federal system, with dual sovereignty. In other words, both the states and the federal government are sovereign (through the People, of course – the states did not cede power to the federal government, the People did).

        The states and the federal government are both sovereign; the easiest way to think of it is that the federal government’s powers are limited (enumerated); but within those limitations, the fed’s powers are both supreme (states give way) and plenary (can legislate complete within the field).

        The debates are usually about what the limiting text that keeps the fed’s plenary and supreme power in check, and what the N&P clause does in relation to that.

        Easy example- Art I, sec. 8 provides that the feds have the power to establish post offices and post roads. That would mean, for example, that they can create a national postal service. That they can buy land to make post offices. That they can create and maintain roads for the postal service. That they can employ postal workers. So far, pretty easy.

        But it would (or should) also mean that they can create a federal criminal law to deal with those who would hinder the postal service. People who commit crimes using federal postal service. Those who obstruct the mail. Those who kill mail carriers, even, would be subject to federal criminal law.

        …and so on. But it wouldn’t mean that the federal government has a “general police power” to charge people with homicide in a state. Nor to conduct family court proceedings. …but they would have a general police power over federal territories, lands, and jurisdictions.

        blah blah blah. Another day, another re-inventing of the wheel.

        1. loki13,

          I was only claiming that there was nothing misleading about the ellipses. I was trying to clarify the argumnet, not necessarily endorse it.

          1. I agree with you- my response was to the other guy.

            I think ReaderY nailed it, above (although I would put it slightly differently).

            If the Federal Government is acting under enumerated powers, then it has (for example) what we might refer to as a police power. If it is acting within its own territory (federal land, for example), then it is has general police powers.

            The question asked in this case isn’t correct; if the judge’s question was correct or appropriate, then there would never have been a (Barron v. Baltimore) 4th Amendment. Of course there is a plenary (aka, police, aka sovereign) power for the feds; they are just limited (enumerated powers) in a different fashion.

            1. “If it is acting within its own territory (federal land, for example), then it is has general police powers.”

              Constitutionally, in order for this to apply, the land in question has to have been purchased with the permission of the legislature of the state it is in.:

              “To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over 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;”

              The federal government only gets this authority over land if the state government agrees to give it. One of those clauses which has fallen out of use, but it’s still in there.

              1. “That’s not “hostility to the Second Amendment”. That’s straightforward application of current doctrine.”

                There is another possibility that created most of the federal land in the Western states. Specifically, the Federal government keeps possession of lands it already held when a territory is admitted to the union as a state.

        2. “through the People, of course – the states did not cede power to the federal government, the People did”

          The “people” had nothing to do with the creation of the government. Our government was created by slaveholding elites. Nobody asked nonproperty owners, women, blacks, or Indians what they thought.

          The US government has sovereignty because it won the revolutionary war and kicked out the British, and we have dual sovereignty because it was imposed by the Framers after the Articles of Confederation failed.

          The “People” are and have always been irrelevant.

          1. “and we have dual sovereignty because it was imposed by the Framers after the Articles of Confederation failed.”

            It wasn’t really imposed by the Framers, it’s a muddied compromise.

            The Framers were roughly evenly split in two groups. One group wanted to either dissolve the states or reduce them to mere corporations fully subject to an all powerful central government. The other group recognized the need for a stronger central government, but wanted one only marginally stronger than the one provided by the Articles of Confederation.

            Neither group had the votes to get what they wanted, so we are stuck with an attempt to split the baby.

  11. There’s a low road that gets to Scotland afore ye. (Trans: there’s a quicker way of disposing of the question that leaves you in a similar place.) Nishimura and its progeny nest the power to control immigration within the outward-facing foreign relations powers. International common law is one of the Erie lacunae where the common law still binds in the federal system, and international law is part of our law. So it’s unwise to hold that the power to exclude aliens is necessary and/or proper to an enumerated power, not least because international norms would still bind even if the first-order enumerated power underneath which the power was nested was struck from the Constitution tomorrow. (The President couldn’t just tell the complaining nation to go talk to a sheriff in Arizona.) After that, you’d need to find a completely different basis for internal seizures, one that is independent from the powers which every sovereignty holds and must effectively hold within the community of nations. Leaving you in effectively the same place, but not endangering the jus gentium.

    Just thought of that. It’s likely quite wrong, don’t rely. Cheers.

    Mr. D.

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