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Legal Commentary

: The Volokh Conspiracy

?Can a State Take Federal Land by Eminent Domain??

By Eugene Volokh

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That?s what my UCLA Law School colleague Professor Bainbridge asks, pointing to this AP story:

Fed up with federal ownership of more than half the land in Utah, Republican Gov. Gary Herbert on Saturday authorized the use of eminent domain to take some of the U.S. government?s most valuable parcels.

I don?t know of any cases specifically on this, but I think this has to be unconstitutional: A state may no more seize federal property than tax the Bank of the United States, see M?Culloch v. Maryalnd, 17 U.S. 316 (1819). ?[T]he states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.? Likewise, states have no power to use the eminent domain power to impede the ownership of property by the federal government.

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Full post as published by The Volokh Conspiracy on March 29, 2010 (boomark / email).