Eminent Domain

Eminent Domain Prevails Over Sovereign Immunity in Supreme Court Case Both Sides Deserved to Lose

The Court's ruling in PennEast allows the federal government to delegate the power of eminent domain to private firms seeking to condemn state-owned property.

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In today's Supreme Court decision in PennEast Pipeline Co. v. New Jersey, a closely divided 5-4 Supreme Court ruled that the federal government can authorize private firms to use the power of eminent domain to take property owned by state government. PennEast argued that Congress had the authority to use the Natural Gas Act to delegate to private firms the power to use eminent domain to take property to build pipelines. New Jersey (which opposes the construction of the pipeline in question) argued that sovereign immunity prevents Congress from authorizing eminent domain lawsuits by private parties against state governments.

In my earlier post about PennEast, I explained why this is a case both sides deserve to lose. Nothing in today's ruling changes my mind on that score.

The case features an unusual 5-4 alignment. Conservative justices Samuel Alito and Brett Kavanaugh joined the Chief Justice's majority opinion, as also did liberals Sonia Sotomayor and Stephen Breyer. Conservative Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett were all in dissent, as also was liberal Elena Kagan. Justice Barrett wrote the principal dissenting opinion (joined by all four dissenters), while Gorsuch wrote a separate dissent, joined only by himself and Thomas.

The majority opinion, written by Chief Justice John Roberts, concedes that the states have broad sovereign immunity against lawsuits by individuals, which Congress cannot abrogate. But it claims the power of eminent domain is an exception to that rule, because the states supposedly consented to waiver of sovereign immunity in this field when they ratified the 1787 Constitution:

Since its inception, the Federal Government has wielded the power of eminent domain, and it has delegated that power to private parties. We have observed and approved of that practice. The emi­nent domain power may be exercised—whether by the Gov­ernment or its delegatees—within state boundaries, includ­ing against state property. We have also stated, as a general matter, that "the United States may take property pursuant to its power of eminent domain in one of two ways: it can enter into physical possession of property without au­thority of a court order; or it can institute condemnation proceedings under various Acts of Congress providing au­thority for such takings." United States v. Dow, 357 U. S. 17, 21 (1958). The same is true for private delegatees….

Beginning with the argument that Congress cannot sub­ject States to suit pursuant to its commerce power, it is un­doubtedly true under our precedents that—with the excep­tion of the Bankruptcy Clause… we held that state sov­ereign immunity "restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitu­tional limitations placed upon federal jurisdiction." Id., at 72–73. Seminole Tribe concluded that States' inherent im­munity from suit would be "eviscerated" if Congress were allowed to abrogate States' immunity pursuant to its Arti­cle I powers. Id., at 64.

But congressional abrogation is not the only means of subjecting States to suit. As noted above, States can also be sued if they have consented to suit in the plan of the Convention. And where the States "agreed in the plan of the Convention not to assert any sovereign immunity defense," "no congressional abrogation [is] needed." Allen, 589 U. S., at ___ (slip op., at 8)….

The plan of the Convention con­templated that States' eminent domain power would yield to that of the Federal Government "so far as is necessary to the enjoyment of the powers conferred upon it by the Con­stitution." Kohl, 91 U. S., at 372. As we explained in Cherokee Nation (again quoting Justice Bradley in Stockton),"[i]f it is necessary that the United States government should have an eminent domain still higher than that of the State, in order that it may fully carry out the objects and purposes of the Constitution, then it has it." 135 U. S., at 656…

Despite the majority's grandiose references to "[t]he plan of the Convention," they cite no evidence that anyone at the Constitutional Convention (or at the later state ratifying conventions) ever actually said that the federal government would have a general power to use eminent domain within the states (as opposed to federal territories)—much less that it would have the power to condemn state-owned land specifically. If there was such a plan, it must have been a very carefully kept secret!

As co-blogger Will Baude demonstrated in a pathbreaking 2013 Yale Law Journal article (cited by the dissenters), the dominant view at the time of the Founding and for many years thereafter was that the federal government did not have a general power to use eminent domain within the states. The "plan" referred to by Roberts simply did not exist.

Later Supreme Court decisions, beginning with Kohl v. United States (1875) eventually ruled that the federal government did have a broad power to use eminent domain, including within the states. Perhaps those decisions should be left undisturbed based on structural or living Constitution considerations, or just simply respect for longstanding precedent. But that's different from saying that the states consented to a broad federal eminent domain power in 1787.

In a 2013 commentary on Will's excellent article, I suggested that the original Constitution might still be interpreted to give Congress a narrowly limited authority to use eminent domain in conjunction with implementing other enumerated powers. But even if I was right about this, it still doesn't show that the states gave some kind of blanket consent to federal delegation of eminent domain power to private parties.

But if the majority opinion rests on a serious flaw, the same is true of the dissent, which relies on a very broad conception of state sovereign immunity:

As a "general rule," Congress cannot circumvent state sovereign immunity's limitations on the judicial power through its Article I powers. Allen v. Cooper, 589 U. S. ___, ___ (2020) (slip op., at 7). Thus, even in areas where Article I grants it "complete lawmaking authority," Congress lacks a tool that it could otherwise use to implement its power:"authorization of suits by private parties against unconsenting States." Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 72 (1996). Consistent with this principle, we have rejected arguments that the Indian Commerce Clause, the Interstate Commerce Clause, or the Intellectual Property Clause allows Congress to abrogate a State's immunity from suit….

We have recognized but one exception to this general limit on Congress' Article I powers: the Bankruptcy Clause. Id., at ___ (slip op., at 7). Based on the "principally in rem" nature of bankruptcy jurisdiction and the "'unique history'" of that clause, we reasoned that States "already 'agreed in the plan of the Convention not to assert any sovereign immunity defense' in bankruptcy proceedings." Id., at ___–___ (slip op., at 7–8) (quoting Central Va. Community College v. Katz, 546 U. S. 356, 377 (2006)). Other than this "good-for one-clause-only holding," we have not held that Article I trumps state sovereign immunity. Allen, 589 U. S., at ___ (slip op., at 9).

This broad view of sovereign immunity is, as Justice Barrett notes, consistent with Supreme Court precedent. But, for reasons I summarized here, it is deeply at odds with the text and original meaning of the Constitution, and the theory of government underlying them. It also goes far beyond the wording of the Eleventh Amendment, which supposedly restored sovereign immunity in reaction to the Court's 1793 ruling in Chisholm v. Georgia. Far from granting the states a general immunity from suits by private citizens, that Amendment only  states that "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state" (emphasis added).

Barrett does have some good points criticisms of the majority's reliance on the states' supposed "consent" in 1787:

The Court relies exclusively on the fact that Congress and the States, like the Colonies before them, have consistently authorized private parties to exercise the right of eminent domain to obtain property for mills, roads, and other public improvements… As the Court notes, Congress did so in the early days of the Republic only within "areas subject to exclusive federal jurisdiction," though we later held that Congress could take property within state boundaries as well…. This history is long and undisputed, and the Court presents it as conclusive evidence on PennEast's side of the ledger.

But the question before us is not whether Congress can authorize a private party to exercise the right of eminent domain against another private party, which is the proposition this history supports. Nor is it whether Congress can authorize a private entity to take state property through means other than a condemnation suit. The question is whether Congress can authorize a private party to bring a condemnation suit against a State. And on that score, the Court comes up dry.

Barrett also offers a good critique of the majority's claim that a win by New Jersey would severely impede valuable pipeline projects. As she points out, the federal government would still have the option of simply condemning the necessary property itself, without delegating the power of eminent domain to private parties. The former might be more cumbersome than the latter, in some situations. But it's far from impossible.

In a separate dissent joined only by Clarence Thomas, Justice Gorsuch argues that New Jersey can claim sovereign immunity based on the specific wording of the Eleventh Amendment, because PennEast is a Delaware corporation, and therefore its eminent domain case against New Jersey qualifies as "a suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state." Gorsuch overlooks the fact that at least two of the five firms belonging to the consortium that owns PennEast are based in New Jersey.

While both the majority and dissent work hard to defend their respective positions, both remain deeply flawed. My perspective on the two sides in this case remains similar to Henry Kissinger's take on the Iran-Iraq War: "It's a pity they can't both lose."

NEXT: Federal Court Bristles at Litigant's Recording and Posting of Phone Conversations with Court Staff

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  1. “In a separate dissent joined only by Clarence Thomas, Justice Gorsuch argues that New Jersey can claim sovereign immunity based on the specific wording of the Eleventh Amendment”

    This argument seemed, to me, to have come from left field. The two soverign immunities argument was made by Will Baude in a law review article some years ago, but the Supreme Court has never recognized it.

    The interpretation of the 11th amendment in SCOTUS has always been that it overruled Chilsom vs. Georgia. That explains Hans and following cases. In other words, soverign immunity has always been a thing, the 11th amendment reaffirmed that, and we go from there.

    Will Baude in a law review article argued that is not quite correct, and that it served two purposes. One is to recognize soverign immunity that was already there, which is why you can’t sue your own state in federal court despite the 11th saying “other state”, and secondly too create a stronger immunity that cannot be waived.

    The problem is, the court has repeatedly dismissed this argument and never actually recognized it, and developed its own precedent. Here, Gorsuch (or Thomas, I forget) is writing as if everyone else is an idiot who is wrong and instead, having just now read the article, that is now our law.

    Which is not how things work! At least, it is not how things should work! Maybe the law ought to move in that direction, but then propose it and make an argument. Dont write about how the court has committed a bunch of mistakes and is ill-informed when it is just following precedent and originalism as currently understood.

    1. Sort of. The thesis of the underlying Baude article is that the Federal Govt had no eminent domain power at all except within the District of Columbia. For the first 20 years, the Federal government relied on State eminent Domain power to obtain lands for lighthouses, forts etc. Baude’s argument is that to obtain land within a states borders, states had to consent. It was not until after the civil war that Federal eminent domain power was recognized.

      On the one hand, think about how D.C. was formed: Through constitutional ratification. If the Federal govt had eminent domain power, it could have just taken the land.

      On the other hand, the 5th amendment states that “nor shall private property be taken for public use, without just compensation.” Originally understood as a limitation on Federal powers, the 5th amendment does not say “nor shall private property be taken for public use.” Period. It says: nor shall private property be taken for public use without just compensation.

      I think that the historical record and implied powers arguments are at best ambiguous. It was certainly the custom for the federal government to seek state consent, up until just after the civil war. After the civil war, no one cared much for the states rights argument. Whether the Federal Govt had eminent domain power before the civil war or not, afterward they took it an no one looked back. Or even sideways.

      I think arguing that the Federal Govt does not have eminent domain power in 2021 is tantamount to intellectual masturbation. It produces some interesting academic porn. Makes people feel good. In the end, wont produce much.

      1. It says: nor shall private property be taken for public use Without just compensation.

        The final clause implies that the Federal govt has the power to take property, otherwise the limitation “without just compensation” is superfluous.

      2. DC was mentioned, which brings this little bit of the Constitution up:

        “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, dock-Yards, and other needful Buildings;”

        So, somewhat more than custom was involved here.

        I suppose one could argue that the distinction is that Congress would just be an ordinary land owner relative to the states in regard to land obtained without the consent of a state legislature. But you could also read this to mean that the federal government actually did require state approval to buy land within a state.

        If original practice was to always obtain such permission, that tips the scale in favor of that reading.

        “I think arguing that the Federal Govt does not have eminent domain power in 2021 is tantamount to intellectual masturbation.”

        The federal government has usurped many powers, and trampled many explicit commands within the Constitution, and there is probably no going back, only forward into a future where the federal government claims more and more power, and laughs at all limitations, until finally it falls, and maybe gets replaced by a constitutional government.

        But I still think it’s useful to notice the violations, instead of pretending that everything is just peachy. You can’t see where you’re going if you can’t admit where you are.

        1. The civil war decisively changed the balance of federal/state power. It’s not a coincidence that the eminent domain practice changed after that. So did a lot of other things. Essentially, the whole nature of the state/federal compact changed after the surrender at Appomattox courthouse.

  2. “As she points out, the federal government would still have the option of simply condemning the necessary property itself, without delegating the power of eminent domain to private parties.”

    The utility is just an agent of the US government. Pipelines need federal permits as we know from the Keystone fiasco. So the utility is just facilitating the construction of a federally approved pipeline.

    1. Yeah. Sorry, but that’s just not a winning argument.

      If the Federal gov’t has the eminent domain power to take the land and give / sell it to the pipeline company, then there’s no real difference between that, and “FERC granted petitioner PennEast Pipeline Co. a certificate of public convenience and necessity authorizing construction of a 116-mile pipeline from Pennsylvania to New Jersey”, whereupon PennEast Pipeline Co got the land via eminent domain.

      “PennEast filed various complaints in Federal District Court in New Jersey seeking to exercise the federal eminent domain power under §717f(h) to obtain rights-of-way along the pipeline route approved by FERC”. So the Federal bureaucrats already approved the route. What’s left to distinguish the two cases?

  3. I do not understand the hatred of eminent domain to construct pipelines or electric lines or highways. The owners are not being shot and their land stolen. They get compensation, court decided if they don’t like the offer. These are easements mainly so the owner usually retains usage of most of the property.

    Libertarians apparently don’t use eletricity or gasoline.

    1. But they do own property. And they consider property to be a human right.

    2. “I do not understand the hatred of eminent domain ”

      Part of the issue here, is the somewhat odd situation that a private corporation is utilizing eminent domain, over the objections of the state. Now, it’s for a reason. The US government has delegated its eminent domain authority to the private corporation. (Private in this context means it’s not owned by the government). And there are a lot of checks and balances, including approval authority needed. But…it’s a little odd. And has the potential for abuse.

      Let’s imagine, for example, in a pique of irritation that the Biden administration grants eminent domain authority to Google. And Google feels…vindictive. Perhaps they decide they just HAVE to run a fiber cable through the land that has the Texas Capitol on it. So, they seize it by eminent domain. Texas objects, but Google says “we have the right! (you shouldn’t have screwed with us….).” and the Texas Capitol is blown up for a fiber optic cable…

      1. The fact that private parties have no political accountability, and hence can potentially do things like this, is a huge problem.

        1. 1: Gov’t bureaucrats have to political accountability, either

          2: “PennEast filed various complaints in Federal District Court in New Jersey seeking to exercise the federal eminent domain power under §717f(h) to obtain rights-of-way along the pipeline route approved by FERC”

          To me, this looks like the Fed gov’t bureaucrats have approved the route to be used. So where’s the difference?

          1. 1, Government bureaucrats tend to have more accountability than private corporations. Especially when they can be hired and fired freely.

            2. I tend to approve of the current situation, with the FERC approving any and all eminent domain requests. But, a larger question applies…is it a legal necessity? Could it be eliminated, and the company just choose what it wants to seize, without overview?

            1. 1: Civil service means that none of the government bureaucrats are ever held accountable

              2: This case was about whether or not it was ever legitimate for the Federal Government to delegate its eminent domain power to a private company, and whether that could overcome Constitutional protections of State power

              You can still have a lawsuit about whether or not a particular taking is actually “in the public interest”

        2. It is a potential issue

    3. There might be less hatred of eminent domain if people whose property was taken actually were fully compensated. They typically are not.

      Granted, the market value of a property that isn’t on the market is a fiction. But most eminent domain valuations are BAD fictions. The government uses the power to force a sale to get unreasonably low prices, not just completion of the sale.

      Typically people who sell property voluntarily, do so for a price that compensates them for all factors involved, including the inconvenience of the sale, any moving expenses, and psychic values such as nostalgia. When people don’t sell voluntarily, it’s generally because the land wouldn’t sell for enough to fully compensate them.

      In an actual market, that’s fine, no sale happens. In eminent domain they’re forced to sell and take the loss.

  4. I would have decided this case in favor of New Jersey, and much more narrowly. I would say that, if the United States wants to condemn state land, then the 11th Amendment means, at the very least, that the United States must do so itself, in its own name and through politically accountable officials. I would say New Jersey is immune from suit by private parties, and the United States cannot get around this by a formalism delegating its sovereign power to private parties.

    I would leave the larger question of whether the United States can exercise eminent domain over state-owned land for a case where this question is properly presented.

  5. “Gorsuch overlooks the fact that at least two of the five firms belonging to the consortium that owns PennEast are based in New Jersey.”

    So if a Delaware corporation has major stockholders from New Jersey, it can sue New Jersey in Federal Court?

    2/5 = 40% = less than 1/2 “New Jersey” == “Not New Jersey”

    So this argument is a clear failure

  6. “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state”

    Having read your initial article, you seem to have Zero understanding of the 11th Amendment

    The point of State sovereign immunity is that the People of the State (who are sovereign within their State, since they control the government by their votes) have the right to do things their way, and no unelected, unaccountable black robed thug can conspire with a foreigner to force their way on the People of that State.

    Because the People at the time of the Founding did not suffer from the delusion that being a “judge” makes you infallibly correct.

    Federal diversity jurisdiction requires that the plaintiffs be from different States. So a major point of the 11th was to eliminate Federal diversity jurisdiction over State actions.

    In short: if you have a problem with how the People’s agent (the State government) has acted in their State, you have to go to their State courts, not someone else’s Courts.

    Not because “the State can do no wrong”, but because right and wrong are for the most part political questions, and “We the People” get to decide that for State issues.

    IIRC, it’s called “Federalism”

  7. You can reasonably believe that States should have an absolute right to block any national infrastructure (pipelines, canals, Federal highways, trains, electric lines, etc.) going through those States (of course, if you do that, I’m pretty sure you have to give up on Wickard v. Filburn, because beliefs have consequences)

    You can reasonably believe that once the Federal Gov’t has approved the route for any national infrastructure, it can grant any actor (Federal Department or private company) the power to use the Fed’s eminent domain power to get the land for the route.

    But I don’t see any other reasonable position to stake out on this case.

    Given all the other things we let the Feds do, i see no reason why gas pipelines should be the only bridge too far.

  8. Also a pity: Henry Kissinger is not in prison.

    1. Ah, the good fascist Rev let’s us know: It’s always a pity when someone he disagrees with isn’t in prison

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