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Monday, March 29, 2010

Federalism and Eminent Domain

The Wall Street Journal reports:

Utah Gov. Gary Herbert signed a bill Saturday authorizing Utah to file eminent domain proceedings against federally owned land, primarily to gain access to state-owned parcels to be able to drill where trucks and pipelines now can't reach.Utah's new law authorizing it to condemn and take control of some federal lands isn't likely to prevail, experts say.

In signing the legislation this weekend, Gov. Herbert is appealing to long-simmering ire in the West over federal control of natural resources at a time of escalating tension between some states and the White House.

The Utah law would seem to fall afoul of the Constitution's supremacy clause. As Justice Marshall explained in McCulloch v. Maryland:

The United States have, and must have, property locally existing in all the states; and may the states impose on this property, whether real or personal, such taxes as they please? Can they tax proceedings in the federal courts? If so, they can expel those judicatures from the states.