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12/07/2012

Further Thoughts on the Fifth Amendment and Taking State Property
Michael Ramsey

Regarding my post on Arkansas Game and Fish Commission v. United States, Brett Bellmore comments:

Could it be the Court is reasoning that "private" simply means, in this context, "other than that owned by the entity engaging in the taking"?

Interestingly, on this argument that the fifth amendment doesn't bar takings from non-private entities, does the federal government qualify as "private"? I would think not.

So the 5th amendment doesn't bar the states from taking federal property without compensation. And that being the case, the power to engage in such takings NOT being prohibited by the Constitution to the states, it is thus among the reserved powers states can exercise.

Such is the logical consequence of assuming that "private" in the context of the 5th amendment, means only what we usually mean by it.

It's a thought-provoking comment, but I disagree.  Well, I agree that under my argument (that "private property" in the Fifth Amendment means just private property), federal property is not "private."  [Note: in the original post, I argued that the Fifth Amendment could not protect state property from federal takings because state property isn't "private")].   And I further agree that, as a result, the 5th Amendment doesn't bar the states from taking federal property without compensation.  But that doesn't mean states can take federal property, with or without compensation (much as I like the idea).  A state attempt to take federal property would, in my view, be preempted by whatever federal law underlay the acquisition or use of the federal property in the first place.  So, for example, if the federal government designates a given parcel as part of the XYZ National Park, a state cannot take that parcel (even by paying compensation) because state seizure of the land would conflict with federal law.  (I believe this actual issue came up in Utah a few years ago).  The Fifth Amendment has nothing to do with it; the relevant text is the supremacy clause.

And, even if that analysis doesn't work in all cases, surely Congress can pass a law, pursuant to its Article IV power to "make all needful Rules and Regulations respecting ... Property belonging to the United States," that states may not take federal property.  And by Article VI, that law prevails over any state attempts to seize federal property.  No Fifth Amendment needed.

FURTHER THOUGHTS:  Brett Bellmore adds --

I would say that reading Article 4, section 3,

"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

in conjunction with Article 1, section 8,

"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 the 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; "

that the land which the federal government purchases "by the Consent of the Legislature of the State in which the Same shall be,", due to being extraterritorial in nature, would not be subject to state eminent domain actions. But I'd argue that for any property the federal government buys *without* such consent, it is an ordinary land owner.