Courthouse Steps Oral Argument Teleforum: PennEast Pipeline LLC v. New Jersey

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On April 28, 2021, the Supreme Court will hear oral argument in the case of PennEast Pipeline LLC v. New Jersey.  In this case, the Court will address the conflict between state sovereign immunity secured to the states by the Eleventh Amendment and the Federal Natural Gas Act which authorizes certain private actors to exercise Federal eminent domain power. 

In this case, PennEast Pipeline used the Act to take forty-two New Jersey properties in order to build a pipeline.  New Jersey fought the taking, arguing that PennEast was not appropriately authorized under the Act and even if the authorization were appropriate, sovereign immunity applied.

The District Court sided with PennEast, finding the exercise of eminent domain was authorized.  The Third Circuit disagreed, holding that even though the authorization under the Act was appropriate, the Act does not abrogate state sovereign immunity.  The Supreme Court takes up the question whether the Natural Gas Act does delegate federal eminent domain power and if so, whether that delegation removes Eleventh Amendment state sovereign immunity. 

Featuring: 

Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP 

Moderator: Roger J. Marzulla, Partner, Marzulla Law  

 

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Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, April 29, we discuss the Supreme Court's oral argument in PennEast Pipeline LLC v. New Jersey. My name is Evelyn Hildebrand and I'm an associate director of practice groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      I will introduce our moderator who's with us this afternoon. Mr. Roger Marzulla will moderate this discussion. He's a partner at Marzulla Law and an executive committee member of our Environmental Law and Property Rights Practice Group. After our speaker gives his opening remarks, we will turn to you, the audience, for questions. So be thinking of those as we go along and have them in mind for when we get to that portion of the call.

 

      With that, thank you for being with us today. Roger, the floor is yours.

 

Roger J. Marzulla:  Well, good afternoon to all of you who are east of the Pacific Coast Time Zone. I'm Roger Marzulla, and I'm not the one you came to hear from; rather, you came to hear from Paul Clement, former Solicitor General of the United States. More than 100 Supreme Court arguments under his belt and on anybody's list, one of the top lawyers to be sought after for any major Supreme Court case that is pending and is to be argued.

 

      Paul has graciously joined us after his rather triumphal but challenging argument yesterday in PennEast Pipeline v. New Jersey, a case in which he, I thought, rather colorfully ended by indicating that sovereign immunity is a stranger in a strange land when it comes to eminent domain. If that's cryptic for you, I think we'll get it described fairly soon.

 

Suffice to say that the briefs and the arguments in this case range from the Eleventh Amendment and the Fifth Amendment to the Supremacy Clause to Article III jurisdiction to the Articles of Confederation in the time of the Framers and to the Natural Gas Act and the operations of the federal agency, the Federal Energy Regulatory Commission, or FERC, and jumped back and forth from those rather like a sailor doing a gig.

 

To unscramble this all for us: And we're going to have Paul talk about the case in which he represented PennEast Pipeline, a pipeline that has been planned to run from the Marcellus shale beds in eastern Pennsylvania over into New Jersey. And, specifically, focused on the attempts of PennEast to condemn certain lands and other property rights in the nature of easements -- open space easements, agricultural easements and the like, that were owned by the state of New Jersey.

 

Those were, ultimately, stopped dead in their tracks by the Third Circuit when the Third Circuit accepted the position of the State of New Jersey that they were immune from suit on the ground that PennEast was a citizen of another state, Delaware, attempting to sue a state without its consent in federal court in contravention of the Eleventh Amendment.

 

That's the issue that went to the Supreme Court. It was argued yesterday. And with that brief reference to what was going on, because there were a lot of other things going on needless to say, Paul, why don't you tell us a bit about the case, the issues as you saw them, and what was your reaction to the rather spirited arguments yesterday?

 

Hon. Paul D. Clement:  Well, thank you Roger, both for the kind introduction to me but also to the case. I think you, actually, did a great job of kind of situating the case and also capturing the wide range of sources and issues that were discussed yesterday. As your intro suggests, there's a lot of different places that I could start in talking about this case or trying to give everyone a little bit more background. You know, I could start in 1789; I could start, you know, with the plan of the Convention. I could start in 1947 with the critical amendments to the Natural Gas Act.

 

But I think, instead, I'll start in 2015 before FERC when my client PennEast, kind of, made an application for a pipeline. That kicks off a relatively elaborate process before FERC where there's an initial proposal for the pipeline route and then all of the potentially affected property owners are notified pursuant to the FERC proceedings. They have rights to participate and those rights to participate include state governments and are by no means limited to the state governments.

 

The state governments, when they can participate in that process can, essentially, assert their rights as property owners to the extent that the pipeline route is in a cross lands in which they hold some kind of interest. But they also get to participate more as sovereigns in the sense of raising concerns about the effect of the pipeline on a broad range of state interests, everything from environmental considerations to other considerations and policy and the like.

 

That process took place before FERC and it, ultimately, produced what is technically in FERC-speak called a certificate. I think it's a certificate of public interest and convenience or something along those lines. Probably the most important thing about the certificate for purposes of the case before the Supreme Court is to just understand that that certificate is specific as to the route. And so when FERC approves a certificate for a particular pipeline, it approves a certificate that specifies the exact route of the pipeline.

 

That doesn't mean that the route isn't subject to change if FERC makes changes or approves changes, but there is encapsulated within the certificate the route of the pipeline. In order to effectuate the pipeline, then, the company needs to -- who's now the certificate holder, needs to secure the rights-of-way for the pipeline. Generally, those take the form of easements. It's not that there's a need to take the property and fee, but there is a need for an easement for the pipeline to go through the property.

 

That process is often taken care of through voluntary negotiations. But in order to, essentially, deal the hold out problem that adheres in any major public infrastructure project -- you know, going back to the early turnpikes and canals. To solve that hold out problem, the pipeline certificate holder is clothed with the federal government's eminent domain power and has the power to initiate a proceeding to condemn the easement or the right-of-way and to pay just compensation to the property owner in compliance with the Takings Clause and its just compensation requirement.

 

And so, it's been set up for about 70 years under the Natural Gas Act. For about 70 years, both state property and private property has been taken by certificate holders pursuant to this process. Until very recently, that all went off without a hitch and without objection. Obviously, if you are the subject of an eminent domain proceeding you're not particularly happy about it, but your solace is that the proceeding is designed to give you just compensation. And, as I say, for roughly seven decades since this provision was added to the Natural Gas Act in 1947, this has gone off without a hitch.

 

But New Jersey, in these proceedings, and Maryland has now followed suit in another case. And Oregon has promised that it will file suit, if allowed, have raised an Eleventh Amendment objection. And they, essentially, look past momentarily the fact that this is a very unusual proceeding. An eminent domain proceeding under a statute where you have a company that is deputized with the federal eminent domain authority, but they look past that and say, "At the end of the day this is just a suit by a citizen, corporate citizen, but a corporate citizen of Delaware against the state." And that's a no-no under the Eleventh Amendment.

 

The district court made pretty short work of that argument and said, "You're kind of misunderstanding the basic point of eminent domain." The Third Circuit reversed and, essentially, they ultimately ruled on statutory grounds but the essence of the decision was to find sovereign immunity presence under these circumstances, and that case was taken up to the Supreme Court. And that's the case that was argued yesterday.

 

I think, Roger, you have accurately captured the argument that it was wide-ranging though substantively but also chronologically there was a fair amount of discussion about the plan of the convention. There was a fair amount of discussion about what Congress wanted to do in 1947. There was also a fair amount of discussion about the nature of an eminent domain suit. It's a very different suit from your classic damages action against a state which was, you know, what precipitated the Eleventh Amendment in the form of Chisholm v. Georgia.

 

Unlike a typical in personam damages action, there's no threat to the treasury. There's not even an allegation of wrongdoing. To the contrary, the idea of this kind of suit is you're, essentially, alleging that the state has been wronged in its capacity as property owner, and it's entitled to just compensation.

 

And, then, maybe the last thing I'll leave you with because I know you have plenty of questions for me and this case is an interesting one; it certainly raised plenty of questions on the justices' part. But one thing that is interesting is if you think about the state's ability to file a Taking's action, and the state very much reaffirmed yesterday that they think that if their property can be taken, they're entitled to a just compensation action under the Takings Clause.

 

If you look at the text of the Takings Clause, it talks about private property. And one of the questions that Justice Barrett asked near the end of the argument was, "Isn't it a little unusual that the state, on the one hand, is saying that it has a right to just compensation because this is private property. But, on the other hand, it's saying that there is a sovereign injury with respect to the eminent domain action."

 

So that's just one of the many interesting questions that were kicked around yesterday.

 

Roger J. Marzulla:  And there were quite a number of those questions. And I'd like to actually, perhaps, play justice here a little bit. And ask about a few of those questions, Paul, and see what you think about them. Not only from your client's perspective but, perhaps, from the broader perspective from maybe give us a little bit of the other side, as well.

 

      There was mention by a number of the Justices, of the caption of the case that the caption, and we're talking about the caption of the trial court, was PennEast Pipeline which I believe was Justice Gorsuch said, "Now, that's a citizen of Delaware, right," versus the state of New Jersey. And that looks like a suit by a citizen of one state against another state brought in federal court. Isn't that exactly what the Eleventh Amendment prohibits? Why isn't this case barred by the Eleventh Amendment?

 

Hon. Paul D. Clement:  So I'll definitely answer that in terms of coming at it from both pieces of the caption, but I will start with the observation that the actual caption in the district court for all of these consolidated actions was PennEast Corp v. 1.92 Acres of Land; 1.07 Acres of Land; An Easement to 1.25 Acres of land. These cases were not filed principally in district court as PennEast v. New Jersey.

 

      Now, there's a real federal procedure that requires that you also list at least one property owner for every parcel. But consistent with the fact that these are in-rem actions, the principal defendant in every one of these actions is a piece of property. And if you're not familiar with in-rem lawsuits, it's really weird. But if you think back maybe in the recesses of your mind you can think back to some really catchy captions in Supreme Court history like, you know, United States v. 50,000 acres of land or even United States v. $600 in currency.

     

      There are these in-rem actions where the defendant is -- I think both substantively but also as a matter of form, is the property. And that was the case in these cases, as well. And so one argument as to why the Eleventh Amendment's text isn't directly on point, is these are not suits against the state; these are suits against property in which the state has an ownership interest, but that's different from a suit against the state.

 

      And the Supreme Court, in a series of cases including a case called Hood, written by Chief Justice Rehnquist, and another case called California v. [Deep] Sea Research, I think it's called, drew that distinction so that the Eleventh Amendment doesn't apply with its full force or by its terms to certain in-rem actions.

 

      The second argument that the text of the Eleventh Amendment isn't satisfied here is although at one level PennEast is suing -- is a citizen of Delaware; it's incorporated in Delaware. In another way, that's not really the capacity in which it's suing and it's suing under a particular statute that empowers a lawsuit only by a FERC certificate holder, and in that suit they're really suing in the capacity as a federal delegee.

 

      And, obviously, that sounds a little abstract, I suppose. But one way I think it buttresses that this is not a private corporation suing in its private capacity is that if PennEast, in this lawsuit, doesn't provide just compensation or were to try to take additional property for a non-public use, it would be violating the Takings Clause. And the reason it would be violating the Takings Clause, which by its terms doesn’t apply to anybody but the federal government, is because for these purposes it's a limited purpose federal actor.

 

      And, so, obviously one of the arguments we made is if PennEast is a limited purpose federal actor for purposes of the Fifth Amendment, it would make a lot of sense if they're also a limited purpose federal actor for purposes of the Eleventh Amendment in which case they're not really suing as a citizen of Delaware.

 

Roger J. Marzulla:  So, Paul, I guess this raises at least two issues in my mind that are perhaps somewhat related. The one is from the perspective of the property owner, whether this is private property or whether there's something different about a state-owned property, the owner certainly does have an interest in the proceeding whether it be in rem or not when it's their property involved. If the federal government comes in and condemns my house and excludes me -- I have an interest both in whether this is for public purpose; that was the Kelo case, and whether I'm getting just compensation for it.

 

      And, then, kind of related to that I'd like you to address in a sense how this relates to the notion of property rights. And, I guess, related to that is you talked a lot about deputization or this wasn't a delegation but it was a limited federal actor, in essence, PennEast is acting as the federal government. And, yet, in a federal connotation, the party that files the lawsuit is the federal government, the lawyers that handle the lawsuit are lawyers from the Justice Department, the U.S. Attorney's Office. The funds are paid out of the federal treasury and title goes to the federal government.

 

      Needless to say in this case, it's PennEast or a private actor hiring its own lawyers acting under the authority of PennEast. And it's PennEast that pays for the property, PennEast that gets the title. They don't look like the same thing at least on their face.

 

Hon. Paul D. Clement:  So, Roger, let me try to be responsive to both of those points. In terms of, certainly, any government whether it's the federal government or the state government tries to take your property, you have an interest in those proceedings by virtue of your interest in the property; there's no denying that.

 

      But the one thing that is critical about all of those proceedings, no matter which government initiates them, is it's not like a normal in personam suit where if, for example, you're outside the jurisdiction of the court because you're not present in the jurisdiction, you can essentially block the lawsuit from going forward by virtue by absenting yourself from the jurisdiction.

 

      The rule in the eminent domain context, and really I think in every in-rem context, is because the principal focus of the lawsuit is the property and because you need a certain amount of security as to who has the ultimate property interest in the property. Somebody cannot put the kibosh on either an eminent domain proceeding or other in-rem proceeding by just refusing to show up or refusing to accept process or absenting themselves from the jurisdiction.

 

      And that's, kind of, black letter law that goes back to the Framing and makes sense. If you have something where the region its distinct litigation is you have to fix the ultimate rights in a particular rights or property. You can't let somebody's process-based objection get in the way of that. And that's part of the reason that an immunity in this context really is a stranger in a strange land. There are others, and I'd be happy to elaborate.

 

      It's not to deny that there's not an interest in a property, but it's not the kind of interest that you can just wish away the fact that the sovereign is exercising its eminent domain authority and effectively veto it by absenting yourself or refusing to participate in the process. And that's effectively what the New Jersey claim to immunity would do.

 

      The second piece is -- I mean, you're absolutely right that the federal government when it takes the federal property itself uses a different process. But I also think it's worth keeping in mind that this is not some innovation that Congress came up with in 1947 in the Natural Gas Act. As long as the federal government has exercised eminent domain authority, it has used private deputies in this way, and that's a tradition that pre-dates the Founding. And other governments have used this process in the same way.

 

      And, first of all, it makes little practical sense. And you can go back to this is the way that most of the railroads were built. And, you know, sometimes it was the federal government sometimes it was the state government depending on the era and the area. But, in those cases, the government lent its eminent domain authority essentially to the railroad company with varying degrees of supervision at different parts of our history.

 

But the government had a supervening interest in the railroad being built for infrastructure and commerce purposes, but they weren't particularly well situated to either be the ones that implemented the eminent domain and provided the compensation. It just made more practical sense for the railroad company that was going to derive some revenue from the infrastructure project, once it was complete, to be the that did the ministerial acts of condemning the land and providing just compensation. And to be the ones that wrote the check. And, like I said, it is a different way of implementing the eminent domain power but its roots go back all the way back to the beginning of the use of the eminent domain power.

 

The second point I'll make, and this is why I think it's really interesting for people in The Federalist Society who have a vision of limited government because it's easy to not like the eminent domain power, at all and not like when it's exercised because it's the exercise of government power over private land. But, in some respects, a world where there is a robust eminent domain power but only the government itself, or particularly the federal government itself, can exercise it is not really a recipe for limited government.

 

I think it's an interesting thought experiment to go back and think about what the development of the railroads would have looked like if New Jersey's position was correct. Because if New Jersey's position is correct, then any state that didn't want a railroad, could have objected to the building of the transcontinental railroads. And, I suppose, New Jersey would say, "Well, it's not that big a deal because the federal government can just do it itself." But, then, as a necessity of New Jersey's argument, you'd essentially have little federal land offices all throughout the lower 48 as a result of this immunity.

 

And that's not, obviously, something that might have been a net plus from the perspective of a limited federal government, but it would all of a sudden have to have this network of land offices to exercise the eminent domain power in a more hands on way. I think that's one of the aspects of this that is very interesting and makes New Jersey's argument. In a sense, it strikes me as a federalism argument that only a blue state could love because the net effect of it would be to make all governments larger including the federal government and have to do more things themselves and not have any kind of private/public partnership.

 

Roger J. Marzulla:  So, Paul, I think you've actually touched on one of the key issues that the Court was interested in yesterday, as well. And that is this, so called, delegation or deputization of the lending of the federal power of eminent domain to private parties. Are there other areas in the functioning of our national government in which the federal government can hand over to private parties? Governmental authority, in essence, vests them with the authority to, I don't know, to do an Article I or an Article III or Article II, I suppose. Any of those functions.

 

      Where does this come from? How do we get the idea that the sovereign can hand power to a private individual?

 

Hon. Paul D. Clement:  So, you know, Roger I think this idea is less problematic if you do go all the way back to the Framing. Especially if you live in Washington D.C. and you're surrounded by these big federal office buildings full of federal officers. It seems like, boy, there's federal officers with a federal badge and there's the citizenry and there's a high wall of separation, Thomas Jefferson might say, between the two.

 

      But if you go back to the Framing era where there was very little machinery of the federal government and you don't even have a justice department for the first hundred years of our nation but you nonetheless had federal officers bringing lawsuits and the like in various capacities, I think it's just much easier to get your head around the idea that there are certain federal functions where we're going to rely on some otherwise private individuals to prosecute some of the federal government's lawsuits. To even, if you go all the way back to the Framing era, this could happen -- I don't know if it could happen in the federal government or not, but certainly at the state level, you can have even criminal prosecutions brought by private individuals who are deputized as like a special AG and another context you have private tiers in a war context.

 

      So, I do think that in present day terms, I don't think there's as much of this. But if you're trying to understand what the Constitution meant from the beginning or from the Eleventh Amendment, I do think this idea of deputization or delegation is not as unusual as we may think it is today. And I would really underscore that the tradition in the eminent domain context, in particular, is really quite -- the roots of that run quite deep. I came across an 1888 treatise on eminent domain power that was the state-of-the-art treatise as of 1888. And, at one place in passing the author says, "The eminent domain power can even be exercised by the government itself."

 

      So this is something where the delegation of this power is really more the rule than the exception, historically. And I'm not sure there are really too many other things that are like that.

 

Roger J. Marzulla:  Great. Well, you know, I think this is the kind of case that could be the subject of an entire program all on its own for an afternoon but, unfortunately, time is fleeting and I want to give our audience an opportunity to ask questions of Paul Clement. So, Evelyn, if we might? Could we open the mic for the audience to ask questions?

 

Evelyn Hildebrand:  Absolutely. We'll now open the floor for audience questions. While we're waiting for audience members to join the queue, I'll hand to floor back over to you, Roger.

 

Roger J. Marzulla:  Great. And I think, Paul, some of the issues that might be of interest to folks would be in the field of property rights and private property ownership and their central position with respect to the citizens' position vis-à-vis the federal government. But I also thought after the argument yesterday, and I'd like your comment on this, that if indeed the action is really in rem and it doesn't matter who is the owner of the property, particularly, and the state therefore cannot assert sovereign immunity does it go the other way around? Can the state do an in-rem action -- institute an in-rem action against property that belongs to the park service, or the forest service, the federal agency and make the same argument? It doesn't matter whether the federal government owns the property. It is nevertheless just an in-rem action and, so, federal immunity doesn't obtain there.

 

      What would they say to somebody out west who would make that argument?

 

Hon. Paul D. Clement:  I think what I would say is a western state that has that mind shouldn't get too excited because I think the problem with that lawsuit would be less a sovereign immunity problem, as such, and more a Supremacy Clause problem at the end of the day. And that really gets to what I think is one of the critical flaws in the New Jersey position as it came to the Court. And that is, and it's kind of an oddity of their position, but they did not take issue and do not take issue with the authority of the federal government to take state property. So the taking itself if it's by the federal government is something that New Jersey concedes.

 

      And, right there, that distinguishes it from the hypo where a state tried to take the federal government's property because the federal government would not concede that the taking is okay. So New Jersey's position is a little bit of an odd one which is they don't claim sovereign immunity from the taking itself; they only claim sovereign immunity from the judicial process that's necessary to effectuate the taking and provide just compensation.

 

      And the reason that, I guess, I think that's a little backwards and it kind of leads to my stranger in a strange land comment, is ultimately in our unique system of dual sovereignty only one government can have the ultimate authority over land within the boundaries of state because if the rule were otherwise, you could imagine a system where the federal government takes the state property -- and take PennEast out of it for these purposes of this illustration; everybody's acting directly.

 

      The federal government could take the state property through eminent domain and then the state could say, "We're going to exercise our eminent domain and take it right back." And so and so forth. So you can't have that intimate loop. Something has to give. One power -- one sovereign power has to be superior. And New Jersey was perfectly willing to concede that it's the federal government's power that is superior.

 

      But once you concede that, it seems to be properly understood, you really do concede the whole base. Because the whole idea of eminent domain, as its name suggests, is that there's a sovereign that has the ultimate power and in case of public necessity can make a claim for every piece of property in the realm. And once that happens, there's no immunity from the judicial process to implement it. If there were any immunity, it would stop the federal government from taking certain kinds of land and there's a suggestion and an old case, for example, that the federal government couldn't take the land on which the state capital sits for Tenth Amendment purposes. But that would be an immunity from the taking at all.

 

      But once you recognize that there's a different sovereign that has the ultimate authority to take title of the property from you, it's really hard to assert a sovereign immunity against that because the eminent domain is the ultimate act of the superior sovereign. And there's a strain of cases, which is called the Immovable Property Exception Sovereign Immunity, but there's a strain of cases that, basically, make that point but also make an interesting point -- which I have to say I ever really thought about it in these terms before this case.

 

But, you know, The Court in some of these cases has said pretty much flat out that property ownership is not an inherently sovereign act. And there's a way of thinking about this is the real interference with New Jersey sovereignty in all of this, is the fact that the federal government gets to pick the pipeline route; the federal government gets to pick a pipeline route even across state land. If the state doesn't want a pipeline, if the state has different environmental policies, different energy policies, the federal government gets to override all of that and all of that that it's overriding is distinctly sovereign.

 

When it comes to and the state's interest as a property owner they're not distinctly sovereign. And let me just end this little riff with a point, I think, Roger in all the good work you've done in Takings over the years, maybe you'd appreciate this point. But I think there's a sense in which one advantage of us winning this case is it would put the state of New Jersey in the position where, occasionally, the shoe is on the other foot and they had their property taken which you might think might translate to them being a little bit more sympathetic to the claims of the property owner when New Jersey exercises its own eminent domain authority.

 

Roger J. Marzulla:  Well said. Evelyn, do we have calls?

 

Evelyn Hildebrand:  Yes, we do. We have one caller in the queue. And at this point, I'll hand the floor over to you. Our first caller:

 

Caller 1:  All right. This question is for Paul. What is the rationale for sovereign immunity? If the government is subject to the law just like the citizens, why should the government be immune from suit except where it consents?

 

Hon. Paul D. Clement:  It's a great question. It goes all the way back well past the Framing era to the conception of the king can do no wrong. And then that got translated into the English system to the idea that Parliament can do no wrong. Nobody thought that was actually true, but that was kind of the theory of it. And that created the reality where unless Parliament created an express cause of action against the government, if the action took place then there would be no remedy for that, at all.

 

      And that wasn't the world's most popular idea, in general. But the one place it seemed uniquely unfair was when the sovereign took a private individual's land because, and this is a strain that goes through the courts' Takings cases, but the idea is if the government does something and it takes one percent of your income from everybody, well, nobody's happy about it but at least it falls equally.

 

      But when the government wants to build, say, a new mill in a colonial town and everybody's going to benefit from the mill. But certain people are going to have their property taken or the property flooded, it just seems fundamentally unfair not to give those individual property owners some kind of remedy.

 

      And, that's the origins of the Takings Clause. The idea that if the government is going to exercise its eminent domain power over particular pieces of property, it can't do so unless it provides just compensation. So you can almost think about the Takings Clause and being a forced waiver of sovereign immunity. And that's another reason why, I think, New Jersey's claim here is a little bit backwards because it is precisely because of the Takings Clause that the federal government couldn't just say, "Yeah, here's the pipeline route and we're going to give the pipeline route to a company for a supervening public use and it's going to be a bad thing for the property owners, but so be it. We really need to do it."

 

      The federal government can't do that, of course, because of the Takings Clause. But the Takings Clause, unlike other constitutional provisions which are just an absolute prohibition on certain conduct, it's really just saying if you're going to do this, you must provide a remedy. And that's really what Congress was trying to do in this provision that New Jersey's taking issue with. But if you take the long view of history, it's like New Jersey's objecting to its constitutional remedy even though it's conceding the legitimacy of the underlying taking. And there's something just a little bit backwards about that.

 

      But it's a great question about the origins of sovereign immunity because it really does go back to this notion that the king can do no wrong and that would certainly not be a popular notion on this side of the Atlantic either in 1789, 1776 or today.

 

Roger J. Marzulla:  Evelyn, do we have anyone else?

 

Evelyn Hildebrand:  At the moment, that was the only question in the queue, so I will the hand the floor back over to you.

 

Roger J. Marzulla:  Great. Well, I think that Paul has been extremely gracious with his time today particularly at a point where he has, undoubtedly, spent a lot of time working on not only this argument but all his other Supreme Court arguments this term. And I don't want to presume on your time anymore, Paul.

 

      But I would like to ask that you come back when you do get a decision in this case so that we can discuss it again and just see how accurate your observations were today with respect to the issues of federalism and just compensation and Takings law, Eleventh Amendment, immunity, and the rest.

 

      Will you join us next June when the Court finally decides this case?

 

Hon. Paul D. Clement:  I'd be happy to, Roger. It's great to be with you even over the telephone, and I really appreciate your thoughtful questions and thoughtful commentary on the argument yesterday.

 

Roger J. Marzulla: Thank you, everyone and with that I think we will draw this program to a close.

 

Evelyn Hildebrand:  Wonderful. Thank you. Thank you. And on behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I'd like to thank our audience for calling in and participating. We welcome listener feedback by email at info@fed-soc.org.

 

As always, keep an eye on our website and your e-mails for announcements about upcoming Teleforum calls and virtual events. And we do have another Teleforum coming up this afternoon at 3:30, I believe. So check your e-mails for announcements on that.

 

      Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.