Rethinking the Federal Eminent Domain Power
122 Yale L.J. 1738 (2013).
It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.
From the Founding until the Civil War, the federal government was thought to have an eminent domain power only within the
Eminent domain aside, the notion of great powers is increasingly relevant after National Federation of Independent Business v. Sebelius, in which Chief Justice Roberts invoked a theory of great powers to argue that the Necessary and Proper Clause could not justify the individual mandate. While his application of the theory is questionable, there are many other areas of law—such as commandeering, sovereign immunity, conscription, and the freedom of the press—where the great powers idea may rightfully have more bearing.