While teaching Youngstown today, I noticed something that I hadn’t seen before. In Justice Douglas’s concurring opinion, he explains that the federal government can condemn property for any “public purpose.” Not public use, as the 5th Amendment provides, but public purpose.
The power of the Federal Government to condemn property is well established. It can condemn for any public purpose; and I have no doubt but that condemnation of a plant, factory, or industry in order to promote industrial peace would be constitutional. But there is a duty to pay for all property taken by the Government. The command of the Fifth Amendment is that no “private property be taken for public use, without just compensa- tion.” That constitutional requirement has an important bearing on the present case.
Only two years later in Berman v. Parker, Justice Douglas wrote for the Court that the appropriate standard is one of public purpose, not public use.
It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.
The Kelo Court would go on to apply the public purpose standard, effectively writing the public use clause out of the Constitution. Douglas telegraphed his view on the eminent domain power, which the other Justices elided, in an emergency case.
As an aside today I asked my students whether Congress could have passed a statute seizing all of the steel mills under its federal eminent domain power. The Justices, Douglas in particular, seem to assume such a statute would be within Congres’s powers.
In light of Will Baude’s excellent article on the federal eminent domain power, I don’t know if the answer is clearly correct, to the extent that Congress has to rely on its necessary and proper powers. Seizing still mills nationwide–and their employees–for an indeterminate period of time may be for a public purpose, and probably for a public use, but I think it would amount to “a great substantive and independent power which cannot be implied as incidental to other powers or used as a means of executing them.” And if this is correct–that not even Congress could have seized the mills–than Truman most certainly lacked the power to do it. Even if we were in Zone 1 or 2, Congress could not have delegated this power to the President.