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Eminent Domain or Theft?

  • When does a government “taking” morph from eminent domain into theft?
  • Does government have the just power to transfer property from one private entity to another?
  • What happens when Congress grants to itself the authority to simply declare something a “public necessity” and demand you hand over your rights?

Are you familiar with eminent domain? Do you know where that’s authorized in the Constitution of the United States? Do you know the requirements and limitations of eminent domain? A recent case out the Supreme Court shows just how dangerous it is for We the People to not know what the Constitution says. According to this court, not only does Congress have the authority to use eminent domain, but to authorize private companies to use that power for their own private gain. Sadly, not only the courts, but most Americans believe it’s legal.

First, we need to acknowledge that eminent domain is a legitimate power of government.

The power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.

Eminent Domain – The Free Legal Dictionary

It’s just as important to know the limitations on this power established within the Constitution of the United States. These limitations are apparently lost on both Congress and the courts.

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

U.S. Constitution, Amendment V

With this in mind, let’s take a look at the problems with the case Penneast Pipeline v. New Jersey.

Building a Pipeline

Congress passed the Natural Gas Act in 1938 to regulate the transportation and sale of natural gas in interstate commerce. To build an interstate pipeline, a natural gas company must obtain from the Federal Energy Regulatory Commission a certificate reflecting that such construction is or will be required by the present or future public convenience and necessity.” 15 U. S. C. §717f(e).

Penneast Pipeline v. New Jersey

We start with an act of Congress, the Natural Gas Act (NGA), passed in 1938. In its very first sentence, the court has already made a mistake. Congress has the authorization to regulate interstate commerce, not interstate transportation.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Constitution, Article I, Section 8, Clause 3

The problem is only a tiny semantic difficulty in this case. 15 USC §717f(C) does states that:

(2) The Commission may issue a certificate of public convenience and necessity to a natural-gas company for the transportation in interstate commerce of natural gas used by any person for one or more high-priority uses, as defined, by rule, by the Commission, in the case of-

(A) natural gas sold by the producer to such person; and

(B) natural gas produced by such person.

15 USC §717f(C)

That sounds good so far, right? The commission set up by Congress may issue certificates of public convenience and necessity to those who wish to sell natural-gas across state lines. That, however, is not the entire law.

As disclosed in reports of the Federal Trade Commission made pursuant to S. Res. 83 (Seventieth Congress, first session) and other reports made pursuant to the authority of Congress, it is declared that the business of transporting and selling natural gas for ultimate distribution to the public is affected with a public interest, and that Federal regulation in matters relating to the transportation of natural gas and the sale thereof in interstate and foreign commerce is necessary in the public interest.

15 USC §717(a)

Congress simply declared that transporting and selling natural gas to the public is a public interest, and therefore interstate and foreign commerce. In other words, Congress effectively declared that any public interest was suddenly interstate commerce, regardless if it crossed state or national borders. Suddenly Congress claimed the authority to regulate whatever they consider a public interest. While this case does involve interstate commerce, we should recognize that the law this court is using is already unconstitutional, illegal, and void.

Eminent Domain

As originally enacted, the NGA did not provide a mechanism for certificate holders to secure property rights necessary to build pipelines, often leaving certificate holders with only an illusory right to build.

Penneast Pipeline v. New Jersey

The court notes that in the original NGA, the was no mechanism for certificate holders to “secure property rights”. It appears to the court this was a mistake, an oversight, while in fact it was not only the law, it was the supreme law. As I’ve already quoted, the Fifth Amendment allows private property to be taken only for public use. Yet Congress later claimed the authority not only to take private property for private use, but to authorize private entities to do so for it. In other words, the 1938 National Gas Act did not grant the power to secure property rights because the Constitution did not delegate that power to Congress.

Congress remedied this defect in 1947 by amending the NGA to authorize certificate holders to exercise the federal eminent domain power, thereby ensuring that certificates of public convenience and necessity could be given effect.

Penneast Pipeline v. New Jersey

Nowhere in the Constitution is the United States authorized to exercise eminent domain to transfer property from one private entity to another. What this court refers to as a “defect” is called the supreme law of the land. Furthermore, the Constitution does not authorize the United States to delegate its eminent domain to another. Yet Congress simply spoke into existence this terrible power.

When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State courts.

C §717f(h)

Congress simply decided that they had the power to do whatever they think is necessary. This is not only a violation of the Tenth Amendment, but the very structure of our republic.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

If we had a properly functioning judicial system, one that placed the language of the Constitution as the supreme law of the land and was dedicated to opining justly in all its cases, this law would have been recognized as unconstitutional decades ago. Instead, this law has not only been allowed to stand, multiple courts have ignored their oaths to support the Constitution and allowed Congress to effectively rewrite it for their benefit. So much for checks and balances. In their tradition of holding previous opinions above the Constitution, this court conveniently skips right over the constitutional problems, then goes on further to destroy property rights in America.

As relevant here, PennEast sought to condemn parcels of land in which either New Jersey or the New Jersey Conservation Foundation asserts a property interest.

Penneast Pipeline v. New Jersey

Notice a couple of very important points here. Two groups, both the State of New Jersey and the New Jersey Conservation Foundation, “assert a property interest”. These entities don’t simply have a property interest, they have property rights. The very same Fifth Amendment that Congress uses as their authority for eminent domain states:

No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

Some of you may say, “Wait, Paul, these aren’t people. It’s a state and an organization.” But who controls the State of New Jersey? Who ultimately owns whatever is owned by the State of New Jersey? Don’t we call it public land? Yes, the land of the State of New Jersey is public land, but does that give Congress the authority to take land from a state? No, it doesn’t. And who owns the New Jersey Conservation Foundation? Who controls it? Isn’t it the people who ultimately own these properties? And since this land is not being taken for public use, this is not a Fifth Amendment takings. What this is, is government sanctioned theft, with the blessing of the very same judicial branch that was created to protect our rights, including our right to property.

Held: Section 717f(h) authorizes FERC certificate holders to condemn all necessary rights-of-way, whether owned by private parties or States.

Penneast Pipeline v. New Jersey

Section 717f(h) of National Gas Act is unconstitutional, and therefore illegal and void, but this court simply ignores that inconvenient fact to get to this opinion.

Conclusion

The Preamble to the Constitution tells us:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

U.S. Constitution – Preamble

It is unfortunate, but what we have here is almost the exact opposite. We have a union that is being corrupted, justice that only exists for those who can pay for it, states are being pitted against each other, those who are to defend us are being used to persecute us, and the welfare of the powerful few is placed above the general population. Worst of all, the blessings of liberty are being ground under the foot of an ever more tyrannical government. This case is just the latest example of the failure of expecting those in government to act as a check and balance against each other. And every time states allows themselves and their citizens to be treated as subjects of the federal government, freedom and liberty in America die just that much more. This is why John Jay said:

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the United States

Because the American people are generally ignorant of their constitution, their rights are being violated and they don’t even know it. Because we expected the government to teach the rising generation to be free rather than doing it ourselves, the idea of freedom and liberty has become anathema to this generation. Because of our ignorance, we don’t know how to defend and assert our rights. Also because of this ignorance, all branches of governments at all levels are well on their way to converting the United States of America from the land of the free to the land of the subjected. The fact that we are letting this happen proves that we are no longer the home of the brave, but the home of cowards. The only reason for hope is that there is still a small glowing ember of the sacred fire of liberty. The question is, will the people of New Jersey, with the help of patriots across the nation, help fan that ember of liberty, or allow it to be crushed by those who pervert the Constitution?

 

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Paul Engel founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on Amazon and Apple Books. You can also find his books, classes and other products at the Constitution Study website (https://constitutionstudy.com). You can reach him at paul@constitutionstudy.com