Structure, Text, and History in PennEast Pipeline v. New Jersey

Justice Barrett bests the Chief on sovereign immunity and eminent domain.

The topic of sovereign immunity has long been a controversial subject in constitutional law. Chisholm v. Georgia. The 11th Amendment. Hans v. Louisiana. Seminole Tribe. Alden v. Maine. And so on. These issues sharply divided the Rehnquist Court. But I think the unanimity in Allen v. Cooper reflected a generational shift. Now, all of the Justices seems to be on the same page about issues already decided. But what about sovereign immunity issues of first impression? PennEast Pipeline v. New Jersey presents such a case.

Chief Justice Roberts wrote the majority opinion, which was joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. Justice Gorsuch wrote one dissent, which was joined by Justice Thomas. Justice Barrett wrote a second dissent, which was joined by Justices Thomas, Kagan, and Gorsuch. This divide was not ideological. I described the two camps as the Court's non-curious and curious caucuses.

In this case, FERC delegated to PennEast the power to condemn land for a pipeline. PennEast exercised eminent domain on land owned by the New Jersey state government. In order to pursue that remedy, PennEast (a Delaware corporation) sued New Jersey. This suit squarely falls within the prohibition of the 11th Amendment. Thus, the case turns on whether New Jersey's sovereign immunity is waived.

The majority and dissenting opinions take very, very different approaches to the case. Justice Barrett writes that the majority's "argument has no textual, structural, or historical support." This triad--text, structure, and history--is significant. I recently criticized Justice Barrett's Fulton concurrence. She wrote that history did not justify overruling Smith, but text and structure might. But text and structure didn't actually mean the text of the First Amendment or the structure between the federal and state governments. Rather, she was referring to balancing the Free Exercise Clause with the remainder of the the Court's modern jurisprudence. This statement was disappointing for an originalist. In PennEast, Barrett explores all three legs: text, structure, and history.

Let's walk through the case.

First, Barrett explains that the Constitution does not grant Congress the power to exercise eminent domain. The Bill of Rights imposes limitations on federal power. It does not grant governmental authority.

First, the Constitution enumerates no stand-alone "eminent-domain power."² The Court recognizes—as does our precedent—that the Federal Government may exercise the right of eminent domain only "so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution." Kohl v. United States, 91 U. S. 367, 372 (1876); see McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). 

²The Takings Clause of the Fifth Amendment is a limitation on Government power, not a grant of it. It provides: "[N]or shall private property be taken for public use, without just compensation." It thus presumes that the power exists by virtue of other constitutional provisions. 

Later, Barrett favorably cites Will Baude, who has cast serious doubt on the federal government's powers to seize land outside of federal enclaves:

Moreover, no one disputes that for 75 years after the founding, it was unsettled whether the Federal Government could even exercise eminent domain over private land within a State. See Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L. J. 1738, 1741, 1761–1777 (2013).

By contrast, Chief Justice Roberts writes that the Fifth Amendment recognized a federal "power" to seize land in the states.

When the Constitution and Bill of Rights were ratified, they did not include the words "eminent domain." The Takings Clause of the Fifth Amendment ("nor shall private property be taken for public use, without just compensation") nevertheless recognized the existence of such a power. 

Chief Justice Roberts does not acknowledge this groundbreaking work from one of his most influential law clerks. (I suspect Josh Hawley tops that list). Roberts generally holds a dim view of legal scholars. (I suppose the feeling is mutual). But we aren't talking about "the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria." Baude relies on Roberts's NFIB opinion, which is based on Chief Justice Marshall's McCulloch decision! This slight had to be deliberate.

Second, Justice Barrett reaffirms Baude's scholarship. When the federal government exercises eminent domain, it must use one of its other enumerated powers--primarily the Necessary and Proper Clause.

Any taking of property provided for by Congress is thus an exercise of another constitutional power—in the case of the Natural Gas Act, the Commerce Clause—augmented by the Necessary and Proper Clause. So when Congress allows a private party to take property in service of a federally authorized project, it is choosing a means by which to carry an enumerated power into effect.

Justice Barrett properly frames the inquiry:

Here is the right way: Title 15 U. S. C.§717f(h) is an exercise of Congress' power to regulate interstate commerce. Congress cannot authorize private suits against a non consenting State pursuant to its Commerce Clause power. Seminole Tribe, 517 U. S., at 72–73. Nor does the Commerce Clause itself abrogate state sovereign immunity. Cf. Allen, 589 U. S., at ___–___ (slip op., at 8–9). Therefore, Congress cannot enable a private party like Penn-East to institute a condemnation action against a nonconsenting State like New Jersey. 

The Chief does not even suggest that Congress could rely on its Article I powers to waive sovereign immunity here. Such a ruling would run afoul of Seminole Tribe.

Third, instead, the Chief contends that New Jersey in fact surrendered immunity from the federal government's eminent domain power during the constitutional convention. (And to be precise, New Jersey ratified the Constitution in December 1787--that period would be the relevant date).

But there is zero history to show that Congress ever delegated to private parties the power to seize lands from the states. Justice Barrett writes:

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. . . .

The Court cannot muster even a single decision involving a private condemnation suit against a State, let alone any decision holding that the States lack immunity from such suits. It relies exclusively on suits brought by States, suits brought by the United States, suits brought by private parties against other private parties, and suits brought by Indian tribes against private parties—none of which implicate state sovereign immunity. 

And the absence of a historical practice suggests that this power did not exist.

Given the length of time that these questions lingered, it strains credulity to say that history unequivocally establishes that States surrendered their immunity to private condemnation suits in the plan of the Convention 

Moreover, when looking for waivers of sovereign immunity, you need very clear evidence. The Chiefs "dead end" does not support that argument.

Fourth, how does the Chief respond to these historical arguments? He turns to precedent. For example, United States v. Texas (1892) (Harlan, J.) held that states consented to suits by the federal government. And that decision did not rely on historical examples in which the federal government sued the states. Barrett replies:

But in that decision, the supremacy of the Federal Government in our constitutional structure, along with textual cues, were sufficient to resolve the question. Id., at 644–646. Here, there is no basis for drawing an analogous structural inference, much less any remotely relevant text. 

Eh, I thought this was the weakest part of the dissent. Like in Fulton, Justice Barrett uses the words "structure" and "text" as weasel words. Stick with history. It's okay to say a precedent was insufficiently reasoned. Or, say this entire "convention waiver" framework is nonsense. (It is.) But don't hide behind unexplained hedges like "constitutional structure" and "textual cues."

Roberts pounced on this argument:

The dissent argues that the Court in Texas relied not only on "constitutional structure," but also on "textual cues." Post, at 6. But the only relevant constitutional text in Texas was a grant of federal jurisdiction, and that cannot explainStates' implicit consent in the plan of the Convention to suits by the Federal Government.

He's right. You can't beat the Chief on precedent, so don't try. And my goodness, in the context of the 11th Amendment, you cannot rely on "text." The 11th Amendment, per Hans, doesn't mean what it says. Roberts continues:

If it could, then the extension of the judicial power to controversies "between a State and Citizens of another State," Art. III, §2, cl. 1, would suggest that Chisholm v. Georgia correctly held that nonconsenting States could be subject to private suit.

Earlier, Roberts said Chisholm was an "error." I don't know if Barrett thinks Chisholm was wrong as an original matter. She seems to suggest that she does not think it is an "error." Justice Harlan in Hans said Chisholm was correct when it was decided.

Fifth, the rest of Barrett's dissent responds to various pragmatic concerns raised by the majority.

While the Court cloaks its analysis in the "plan of the Convention," it seems to be animated by pragmatic concerns. 

Roberts's historical analysis was largely window dressing. (The references to his homestate of Indiana were delightful). Without question, the majority opinion makes things easier for federal delegatees to seize property. If the goal is to make government work more efficiently, then sovereign immunity should be deemed waived. But Justice Barrett recognizes that the separation of powers are not designed to make government work more effectively. Justice Scalia often explained that friction is a feature, and not a bug in our system of divided government.

Barrett seems to agree. She writes:

State sovereign immunity indisputably makes it harder for Congress to accomplish its goals, as we have recognized many times before. . . . The same is true here: Sovereign immunity limits how Congress can obtain state property for pipelines. This inhibition of Congress is not, however, a reason to set sovereign immunity aside. It is instead a deliberately chosen feature of the constitutional design.

Well said.

I also commend Justice Gorsuch's dissent, which was joined by Justice Thomas. If I read Justice Gorsuch correctly, he suggests that cases like Seminole Tribe, Allen v. Cooper, and Alden do not implicate 11th Amendment immunity. Rather, they rely on "structural immunity." The 11th Amendment, or at least its text, has no bearing on this doctrine:

The first—"structural immunity"—derives from the structure of the Constitution. See Franchise Tax Bd. of Cal.  v. Hyatt, 587 U. S. ___, ___ (2019) (slip op., at 16). Because structural immunity is a constitutional entitlement of a sovereign State, it applies in both federal tribunals, Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 51–52 (1996), and in state tribunals, Alden, 527 U. S., at 712. And it applies regardless of whether the plaintiff is a citizen of the same State, Allen v. Cooper, 589 U. S. ___, ___ (2020) (slip op., at2), a citizen of a different State, or a non-citizen—like a foreign nation, Principality of Monaco v. Mississippi, 292 U. S. 313, 330 (1934), or an Indian tribe, Blatchford v. Native Village of Noatak, 501 U. S. 775, 781 (1991). 

By contrast, 11th Amendment immunity derives from the text of the 11th Amendment. Here, Gorsuch cites an important article by Will Baude and Steve Sachs. This article reshaped how I think about the 11th Amendment. You should read it.

The second—what is properly termed "Eleventh Amendment immunity"—derives from the text of the Eleventh Amendment. In light of its swift adoption in response to Chisholm v. Georgia, 2 Dall. 419 (1793), this Court has read the Eleventh Amendment as pointing to the structural principle just discussed. See Allen, 589 U. S., at ___ (slip op., at 4). But the Eleventh Amendment can do two things at once. See Federal Maritime Comm'n v. South Carolina Ports Authority, 535 U. S. 743, 753 (2002). In addition to pointing us back to the States' structural immunity, it also provides an ironclad rule for a particular category of diversity suits . . . .

This text "means what it says. It eliminates federal judicial power over one set of cases: suits filed against states, in law or equity, by diverse plaintiffs." Baude & Sachs, The Misunderstood Eleventh Amendment, 169 U. Pa. L. Rev. 609, 612 (2021).

PennEast involves a suit by a Delaware corporation against New Jersey. Thus, the dispute actually fall within the text of the 11th Amendment. Gorsuch writes:

This case appears to present "the rare scenario" that comes within the Eleventh Amendment's text. …  Because PennEast sued New Jersey in federal court, this suit implicates "the Judicial power of the United States." … This condemnation suit, by any stretch, is "a[ ] suit in law or equity." … PennEast "commenced" this suit "against" New Jersey. It named the State in its complaint as a defendant as required by the Civil Rules. Fed. Rule Civ. Proc. 71.1(c)(1). And it asked the court for an injunction permitting it to take "immediate possession" of New Jersey's soil. … Because the parties agree that PennEast is a citizen of Delaware, this suit is brought "by [a] Citizen[ ] of another State."

If Gorsuch is right, this case should be thrown out of court, without regard to Hans v. Louisiana. We are squarely within the text of the 11th Amendment.

If that's all true, then a federal court "shall not" entertain this suit. The Eleventh Amendment's text, no less than the Constitution's structure, may bar it. 

If the federal government wants to seize this land, it must do so directly.

What an absolutely fascinating case. So far, the most significant constitutional law decision of the term. I hope federal courts casebooks include it.

Comments

[Brett Bellmore]

Article 1, Section 8, Clause 17:

"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 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;"

[Sidney r finkel]

The idea that government may delegate its eminent domain powers to private companies is an anathema to principled conservatives such as myself, and one thought that the position was settled. But here comes the Supreme Court with a conservative majority saying yes, no problem.

Of course the issue here involved pipelines, so once again political positions triumphed over conservative principles, a practice that is becoming so common one wonders at what principles faux conservatives will not give up when giving them up supports their policy positions.

[Aladdin's Carpet]

The IRS delegates authorities to private tax collectors. The FBI, at times, delegates authority to private investigators. At the time of the founding, private ships were delegated authority to attack pursuant to a declaration of war. Private citizens were delegated full police powers.

The court has repeatedly held that this is ok, and as an original matter it is ok. When private authorities act as "arms of the state", they have full state powers, but are also subservient to the federal government and the constitutional limitations on power.

The way the national gas act is worded, it is only really a technicality that the private company's are taking the land and not the federal government. The question is does this technicality matter.

It is not a general delegation of authority. The gas companies have to go to the feds, say I want X land, the government says you have have these and must get these in this way, and only then do the companies have authority to take it. To me, they are effectively acting as arms of the state, and then the question is does that matter.

From a super formalism perspective, it doesn't. From a literalist perspective, it doesn't. But no one has ever taken the 11th amendment literally, otherwise every case on this for the past 250 years is wrong. No one believes it should be taken literally. So it is somewhat more complicated than you think it is.

[Brett Bellmore]

"The IRS delegates authorities to private tax collectors. The FBI, at times, delegates authority to private investigators. At the time of the founding, private ships were delegated authority to attack pursuant to a declaration of war. Private citizens were delegated full police powers."

The IRS, being owed a debt, can pass it onto another party.

Likewise, the FBI can hire contractors, who are, none the less, bound to the constitutional limits on the FBI.

Letters of marque and reprisal are specifically authorized by the Constitution.

And the original concept of policing is that the police are only doing full time what any citizen is entitled to do; That the police have special rights and powers is a deviation from that understanding.

That said, the real issue here is that there's no founding era evidence that the federal government was understood to have the power of eminent domain within state territories, let alone against states. See that snippet of the Constitution I cited above? The federal government was expected to obtain state permission to simply buy land within a state. And that was the early practice! In fact, I'm unaware that the federal government engaged in eminent domain within a state at all, prior to the Civil war.

So the idea that the federal government could force a state itself to sell its own property, when it needed permission to buy property at all within a state, is kind of mad.

But it's the sort of madness you expect when a government is letting go of the notion that there are any binding limits to its powers.

[dwb68]

this.

If the federal government has eminent domain powers, they can delegate it to a private company.

The question whether they have the power, didn't have it but usurped it, or whatever.

[Sidney r finkel]

It is not more complicated than we think.

What you say is fact, but the fact that delegation exists does not make it right or even Constitutional. The powers given to government were given to government. If the Founders wanted private actors to have these powers they would have given them to the private actors.

We have the same problem with delegation of Congressional powers to the Executive branch. Most prominent, and most reckless and most without authority has been the delegation of war powers by the Congress to the President. A driving force of the Constitution was that the legislature, not the President had the power to declare war. This of course was in reaction to monarchs of the 18th century and before having unilateral power to enter into wars.

Just because something is done doesn't mean it should be done.

[IAdmitIAmCrazy]

I am not a conservative but I would argue with you - and Josh was explicit about it - this was not a “conservative majority” decision. Rather, it cut across the ideological divide. It isn’t even along the lines of a tripartite divide (conservative-moderate-liberal). The Majority is written by what one nowadays calls a “moderate”, the Chief, with another “moderate” (Kavanaugh), one “conservative” (Alito) and two “liberals” (Sotomayor and Breyer) signing on. One dissent shows two “conservatives” (Thomas and Gorsuch) and in the other those two join with one “moderate” (Barrett) and one “liberal”. I agree with Prof. Blackman that such combinations are quite interesting. It takes a little more than ranting about “faux conservatives” to weigh the ideas presented both in the opinion and the dissents.
Blackman did a fine job, and Alladin’s Carpet presents an interesting argument against. As a legal layman I have no means to evaluate his Eleventh Amendment argument.

[WRD]

Wait isn't PennEast an LLC with at least two members New Jersey corporations (NJR and SJI, two of the local gas utilities in South Jersey)?

[Rev. Arthur L. Kirkland]

"Justice Barrett bests the Chief on sovereign immunity and eminent domain."

"Chief Justice Roberts wrote the majority opinion . . . Justice Barrett wrote a . . . dissent"

This blog just keeps getting better . . . especially from the perspective of those who enjoy pondering that this is the best right-wing legal academia can muster. I guess Republicans have to claim victory whenever they find it -- or just lose a close one -- these days.

Carry on, clingers. As best you can manage, I guess.

[buckleup]

That was some strange cherry picking Artie.

"Chief Justice Roberts wrote the majority opinion, which was joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. Justice Gorsuch wrote one dissent, which was joined by Justice Thomas. Justice Barrett wrote a second dissent, which was joined by Justices Thomas, Kagan, and Gorsuch. This divide was not ideological. "

Somehow a normal sentence got mangled up in your mind to mean something else.

Carry on leftist.

[Rev. Arthur L. Kirkland]

How was it misleading?

1. Chief Justice Roberts wrote the majority opinion.

2. Associate Justice Barrett wrote a dissent.

3.. Professor Blackman wrote that ‘Barrett bested Roberts.’

4. This blog is declining.

[Brett Bellmore]

It's pretty simple: Blackman is asserting that Roberts had the numbers, but Barrett had the better argument, 'bested', Roberts.

Mind, 'bested' in this sense is pretty subjective, and doesn't come with any sort of prize except Blackman's admiration. But the meaning was clear enough.

[Rev. Arthur L. Kirkland]

Well, she'll probably pick up a prize or two at Federalist Society events, too.

And she's a high-heeded shoe-in for Handmaiden Of The Year.

[ReaderY]

I agree with Gorsuch on this. The 11th Amendment’s text creates a bar imdependent of what anybody might infer from the constitution’s structure. The plain text must be given effect.

[Dr. Ed 2]

Including the Commerce Clause???

[Martinned]

What does the Commerce Clause have to do with anything? The one is about substantive law, and the other one is about which court you go to in order to get that substantive law enforced.

[WRD]

But the LLC at issue had corporate members incorporated in New Jersey, right? And thus would have the right to sue their own state under the 11th amendment?

[Brett Bellmore]

That was my reaction. Just having members in another state shouldn't cut it, so long as you have members in the same state.

The contrary position is, I guess, that the corporation itself is suing, and you go with the state where it's incorporated. Which means, what? That only Delaware has to worry about being sued by corporations? (Just joking, they're not ALL incorporated in Delaware.)

[WRD]

I looked it up though. Both SJI and NJR are public companies and publish a list of their subsidiaries in their 10-Ks. As best I can tell, both of their interests in PennEast are held through New Jersey corporations. First, both SJI and NJR (the holding companies) are themselves incorporated in New Jersey. That's rare generally, but not totally unusual in the utility industry. Second, NJR's interest is held through NJR Midstream Holdings Corporation (NJ corp) while SJI's is held through an intermediate LLC that is wholly owned by SJI (the holding company, a NJ corp as previously referenced).

I am not a lawyer and I'm not sure if any of this matters, but Volokh has blogged about LLC diversity in the recent Politico defamation case and I believe Somin wrote about it on this exact case.

However, I write this comment because there's an outright error in Blackman's post. In the third paragraph he writes:

"PennEast (a Delaware corporation) sued New Jersey."

This is just factually not correct. PennEast is a Delaware limited liability company. It is NOT a corporation.

[Martinned]

In that case there wouldn't be diversity jurisdiction, so again you're stuck with New Jersey state court.

[Aladdin's Carpet]

The issue with Gorsuchs position is that it exists in law review articles, but it does not exist in any supreme court precedent. That is fine, that is how law evolved, but the way he wrote it was that it was obvious all along and anyone who disagreed was mistaken and ill-informed.

The issue with giving weight to the text is that this literalist interpretation requires ignoring both 250 years of precedent and the way state soverign immunity as it was originally understood. Only two years ago did Will Baude find a way to reconcile everything, and that is the position Gorsuch adopted (it should be noted that 3 years ago Gorsuch signed on to Hyatt, which undermines Baudes whole argument!) Again, its just something in a law review article. It is still needs to be litigated. It should be noted Gorsuch isnt applying a literalist interpretation either.

[dwb68]

Baude's argument was just litigated and he lost.

The federal government has eminent domain power (at least since 1875) and can delegate it. The majority just said so.

Barrett only has a great opinion if your an academic. I found it myopic, a bunch of academic gobbledygook. It wasn't persuasive.

No amount of appointing conservative academics is going to unwind federal eminent domain power. If people want to unwind it, look to Congress or a Constitutional Amendment.

[Brett Bellmore]

That's the difference between originalism and living constitutionalism; From a living constitution standpoint, "We won, that makes us right!" is a sensible argument. From an originalist standpoint, it's not an argument at all, and you can continue to be wrong after winning, or right after losing, because winning in court doesn't make you right.

That the federal government has exercised eminent domain power since 1875, (87 years after the Constitution was ratified!) that doesn't mean it has a legitimate claim to the power. It usurped it.

These things happen, they are not legitimized by virtue of happening. And you damned well don't have to expand on mistakes after making them!

[dwb68]

The correct argument to make is why, after 150 years, the Supreme Court should overturn precedent. There are probably innumerable contracts, environmental laws and regulations**, and too many other federal laws and regulations that would be called into question by the decision to cancel the eminent domain. Only an academic unburdened by the real world does not care about 150 years of reliance interests.

I am not particularly convinced either way about whether the federal govt had eminent domain power. The 5th amendment certainly envisions eminent domain power.

In any case, even if I agree with the argument, the correct way to overturn 150 years of precedent is legislation or a constitutional amendment, not using 9 super legislators, so at least people are put on notice and retro-activity can be properly dealt with.

**Because economic regulations are a taking.

[Brett Bellmore]

"The correct argument to make is why, after 150 years, the Supreme Court should overturn precedent."

Because. It's. Wrong.

But here, we're not asked to overturn 150 years of precedent. We're asked to not add to precedent. This may not be the first case where the federal government ever (illegitimately!) used eminent domain within a state.

But it is the first case where they used it against the state itself.

The argument for not correcting mistakes, even if you buy into it, is not an argument for enlarging them.

[dwb68]

A circular argument. If the federal govt has eminent domain power, they can use it against state property (i.e. take them to court to get property condemned). And, we already agree that if they have the power, they can delegate it.

There is simply no rationale for limiting federal eminent domain power in the way you suggest. Except in the case that they don't have it.

A clean and persuasive argument from Barrett would have been 1) The federal government never had eminent domain power, and 2) this is why we should overturn precedent.

Its all academic at this point. PennEast merely reinforces that the federal govt has eminent domain power, and I don't see a majority revisiting the question in my lifetime.

[Brett Bellmore]

First, no, the federal government constitutionally lacks eminent domain power outside of federal territories, where it constitutionally governs as a state, and so gets to exercise powers of a state. Because it was never delegated that power, and clearly went most of a century without anybody thinking it had it.

They usurped that power after the Civil war.

Now, even if you're going to recognize a sort of adverse possession in cases of unconstitutional usurpations of power, if I were to somehow get adverse possession of one unit in a condo, that wouldn't entitle me to bust a hole in the wall, and kick out the owner of the next unit over.

And that's what just happened: An expansion of a usurped power.

Well, this is what happens in the end game of a decaying constitutional republic. Actual constitutional arguments for why the government lacks a power get less and less respect, get mocked and ignored, because power is its own license for further power after a while.

But that's nothing to celebrate.