In the United States, under the Taking Clause of the Fifth Amendment, the Federal Government's power of Eminent Domain is established:

nor shall private property be taken for public use, without just compensation.

Therefore, even in a case where the use of Eminent Domain went against the expressed wishes of a given State, so long as it was "justly compensated" the Federal Government has full legal authority of the claiming of land.

My question is: why? I know arguments about public necessity, and the origins of the practice in English Common Law, but what I'm looking for, is twofold:

  1. Where in the Constitution is it stated the Federal Government has full legal jurisdiction over all State land?
  2. Is this interpretation (that the Federal Government has complete control over State land) actually correct?
  • 1
    Basically, you're interested in the history and politics underlying the power of eminent domain, right? There is a gap between your "why" question and your enumerated questions. 2 is plainly false and relevant only to federal takings, and 1 has a clearly false presupposition. So I can't figure out what question you are actually asking.
    – user6726
    Commented Nov 20, 2017 at 17:06
  • Is there a reason that you think a state would have a say over a federal exercise of eminent domain within its boundaries? This seems to be related to your question law.stackexchange.com/questions/24231/… which also has misguided and incorrect assumptions.
    – ohwilleke
    Commented Nov 20, 2017 at 20:40
  • I just wanted to figure out in what way (when / where) the States ceded that power - which yes, I realize now is the Supremacy Clause (which I really should have know). Commented Nov 20, 2017 at 20:48

3 Answers 3


Article I, Section 8 of the United States lists the powers of Congress (and a handful a sprinkled elsewhere in the U.S. Constitution and its amendments, such as the power to regulate court jurisdiction in Article III and the enforcement powers of the 13th and 14th Amendments, to give a non-exclusive list).

These powers include powers reasonable and necessary to achieve the other powers.

Various federal statutes authorize eminent domain power exercises in different contexts for different purposes expressly set forth in those statutes and the constitution.

The Supremacy Clause of the United States Constitution (Article VI, Clause 2) makes federal law supreme over state law in every state. It states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The federal government has control over everything happening in U.S. states to the extent that it is in furtherance of the limited powers of the federal government set forth in the constitution, and not in violation of any prohibition on federal action in that area (e.g. the federal government can bribe state governments but cannot generally force them to take a particular action on its behalf).


The Federal Government does not have full legal jurisdiction. You're mistakenly assuming it has.

The problem is that governments (federal and state) can act as private parties in certain cases. In particular, they can be owners. The Eminent Domain principle allows the Federal government to take ownership, yes, but ownership does not give full legal jurisdiction. In particular, it's not a way around the Tenth Amendment. Ownership of land gives the rights and responsibilities as dictated by State law.

  • Pretty much any argument based on the Tenth Amendment is exceedingly weak.
    – ohwilleke
    Commented Nov 20, 2017 at 20:34
  • @ohwilleke I vaguely remember hearing about that. If I remember correctly, because it includes the phrase “and to the people” who are represented by the Federal Government, it doesn’t actually do very much and has therefore rarely been cited by judges, right? Commented Nov 20, 2017 at 20:45
  • 2
    @BrandonBradley Pretty much everything that the 10th Amendment says is already implied in the structure of the constitution (i.e. Congress has limited powers, there is a bill of rights). Almost nothing beyond that is added by the 10th Amendment itself.
    – ohwilleke
    Commented Nov 20, 2017 at 20:49
  • 1
    Has nothing to do with the government acting as a private party...
    – A.fm.
    Commented Nov 20, 2017 at 21:19
  • @ohwilleke: True, but I'm not quoting it as an argument in favor of my answer. It's a corollary .
    – MSalters
    Commented Nov 21, 2017 at 9:12

1) See your quoted text.

2) No, it doesn't say it has complete control over state land. Then again, state land is not private land, anyway.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .