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Eminent Domain

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Barrett’s dissent begins on page 33 of this pdf of the US Supreme Court decision yesterday continuing to broaden the power of private firms to invoke the Eminent Domain clause for private commerce.

Excerpt from her dissent:

“While the Court cloaks its analysis in the “plan of the Convention,” it seems to be animated by pragmatic concerns. Congress judged private condemnation suits to be the most efficient way to construct natural gas pipelines, and to this point, States have cooperated. . . . But now that New Jersey has chosen to object, it threatens to “thwart” federal policy. . . . If the Court sided with New Jersey and Congress did not amend §717f(h), New Jersey (not to mention other States) could hold up construction of the pipeline indefinitely. And even if §717f(h) were amended, a new statutory procedure might be less efficient than permitting PennEast to sue New Jersey directly. Holding New Jersey immune from suit thus would reward its intransigence. Our precedents provide a ready response: The defense of sovereign immunity always has the potential of making it easier for States to get away with bad behavior—like copyright infringement, . . . patent infringement, . . . and even reneging on debts . . . . Indeed, concern about States using sovereign immunity to thwart federal policy is precisely why many Justices of this Court have dissented from our sovereign immunity jurisprudence . . . . The availability of the defense does not depend on whether a court approves of the State’s conduct.”

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Richard Epstein's outline of his book Takings giving a restrictive theory of the Eminent Domain clause.

"I should note that Takings is an effort to find in a single clause of the Constitution the distillation of a comprehensive political theory. If the book is correct, then it is possible to find guidance in a single provision to the fundamental problems of political obligation. The same analysis that applies to the acquisition of original property rights carries over to the largest questions of social organization."

Edited by Boydstun
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