If you happened to see the recent media coverage of the heated exchange between Jeb Bush and Donald Trump over eminent domain during the last Republican presidential debate, you might be wondering what the excitement was all about. Why did the usually stolid Bush get so agitated about this subject? What legal justification did Trump have to try to rely on the government’s takings power in his efforts to develop his private casino property?
Real world consequences
These arguments may seem esoteric, but they have significant real world consequences. I’ve previously discussed eminent domain matters in this blog, in the context of controversial municipal efforts to address local underwater mortgage problems, but the impacts of government takings reach much further than those specific circumstances. While a detailed discussion of eminent domain is beyond the scope of this article, I hope to highlight a couple of important ideas for your consideration.
As a starting point, the notion that the government has the power to take private property was acknowledged in the Bill of Rights. The Fifth Amendment to the Constitution, adopted in 1791, prohibits the taking of private property for public use without just compensation. Ever since then, the meanings of the terms “public use” and “just compensation” have been litigated in countless disputes between government agencies seeking to exercise eminent domain power and private property owners fighting to resist that exercise.
What limits exist?
The question of what limits exist on the notion of “public use” ultimately produced the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London, which has been called one of the most controversial Supreme Court rulings of all time. In that case, the Court determined, by a 5-4 vote, that the City of New London, Connecticut, had the right to condemn private homes in an economically distressed area and turn those homes over to a private business (Pfizer) for commercial redevelopment, to further the City’s stated municipal purpose of reinvigorating the local economy and improving the local tax base.
For students of constitutional law, the Court’s holding in Kelo should not have come as a surprise; the majority’s reasoning is clearly consistent with the precedent set by the Court in the Berman and Midkiff cases, which broadly interpreted the Fifth Amendment’s “public use” requirement. However, many critics have questioned the wisdom of allowing government to exercise its takings power to confer benefits on certain private interests at the expense of other private interests. As shown in Kelo, when eminent domain can be used to grant a private party an advantage over another private party, political considerations will dictate that it is those who are politically weak who will likely suffer, such as minorities and the poor.
Aftermath of Kelo
In the aftermath of Kelo, a myriad of efforts were undertaken across the country to prevent the taking of private property for other private use. Even amid these efforts to curb the use of eminent domain power for these purposes, however, politically-connected interests were able to carve out exceptions for their own benefit. For example, when the State of Texas adopted legislation to prevent these types of takings, it excluded the development of a new stadium for the Dallas Cowboys from this limitation.
Beyond the obvious, outrageous takings that surfaced in the wake of the Kelo decision, even the more prosaic exercises of eminent domain power should raise concerns for property owners and the policymakers who represent them. Locally, the Midpeninsula Regional Open Space District, a public agency dedicated to the conservation of open space in the Bay Area, is currently contemplating the use of eminent domain for the first time in nearly twenty years to further the creation of an accessible open space preserve on Mount Umunhum, a former Air Force radar station located in the Santa Cruz Mountains. This action has been precipitated by the refusal of two local property owners to sell their land despite three years of efforts on the part of the District. Still, the prospect of going down this path appears to be giving the District some pause, especially in view of the negative public reaction received by the District the last time it tried to use this authority, in its attempts to acquire nearly 300 acres of open space from a group of elderly Russian Orthodox nuns. When it comes to takings, deliberation may be the most prudent path.