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Univ. of Kentucky College of Law

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Monday, March 29, 2010

Is Federal Land Subject to State Eminent Domain Power?

Several weeks ago, one of my students (hat tip: Emily Pabalan) forwarded an article about a bill pending in the Utah legislature that would authorize the state to condemn certain parcels owned by the federal government.  According to this AP story in yesterday's Washington Post, the legislation apparently has passed both chambers and been signed by the governor.  I was going to post a few thoughts, only to discover that I've been beaten to the punch both by Stephen Bainbridge and Eugene Volokh.

Like Professor Volokh, my initial reaction is that this use of eminent domain will be ruled unconstitutional under an analogy to M'Culloch v. Maryland.  If a state can't tax a federal bank, then it seems difficult to conceive that it could condemn federal property.  And this analogy raises an issue that I find both interesting and important -- i.e., the relationship between the taxing power and the eminent domain power.  As I point out in a forthcoming article in the William and Mary Law Review (see SSRN version here, pp. 28-31) taxes and takings share several theoretical characteristics but are almost always treated separately as a doctrinal matter.  Although some scholars (notably, Richard Epstein, Eric Kades, and Eduardo PeƱalver) have tackled how these two powers should inform each other, I think there is probably a lot more to say.  Maybe the litigation that (inevitably) ensues from the Utah statute will help answer some of the questions.

Mike Kent

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