Constitutional Law

Eminent Domain No Longer Serves The Public Interest

It is now primarily a tool for crony capitalism.

By  
on

Contained within the Fifth Amendment of the United States Constitution is a provision commonly known as the Takings Clause, which restricts government from seizing private property “for public use, without just compensation.” When the government appropriates private property for public use under the Fifth Amendment, this power is typically referred to as eminent domain.

Eminent domain was intended to serve an important function in preventing holdouts from stalling or significantly increasing the cost of public projects. Nevertheless, the power of eminent domain has always carried with it a high level of grief. For example, in the mid 1960s, then Governor of New York State Nelson Rockefeller oversaw the development of the multi-billion Empire State Plaza in Albany. It was to be the largest and most expensive government complex ever built in North America. Rockefeller called it “the most spectacularly beautiful seat of government in the world,” but those who had their entire neighborhood seized and destroyed understandably did not share his positive view.

Projects such as the Empire State Plaza in Albany where government acquired private lands in order to build public facilities such as government buildings or parks was how eminent domain traditionally functioned for centuries. That all changed, however, in 2005, when the Supreme Court ruled in Kelo v. City of New London that government may seize private property from one owner and transfer it, not to the government for public use, but to another private owner. The Court stipulated the transfer from one private owner to another must be done for a “public purpose” such as generating greater economic activity. However, the promised increase in economic activity in such cases has not always materialized and often the resulting harm is significant.

The development at issue in the New London case for example never came to fruition and as a result, the once charming neighborhood is now a massive unused plot. More recently, in Wisconsin Gov. Scott Walker finalized a deal with Foxconn, a Taiwanese manufacturer, to build a massive plant promised to create jobs and stimulate economic growth in the area. As part of the agreement however, many homes will be seized via eminent domain and Foxconn was given 4.5 billion in state and local subsidies. Moreover, the State of Wisconsin will also be reimbursing Foxconn 17 cents for every dollar it pays to its employees, “meaning the very taxpayers losing their homes will likely subsidize the paychecks of future Foxconn workers.”  If the promised benefits are actually realized — a big if as deals of this sort can quickly fail — the state will still not be able to recoup its losses for almost two decades until the year 2043.

Gov. Walker has received significant criticism in his home state for the Foxconn “deal,” jeopardizing his reelection. Another project that is generating even more criticism over eminent domain power is the presidents much sought after border wall. The amount of private land that will be seized under eminent domain to build the border wall will be on a much grander scale than anything we have seen recently. The problem is, other than the very wealthy, those who have their land seized are not given anything approaching adequate compensation. This fact alone should give everyone pause and affirm the need to reevaluate whether current use of eminent domain power furthers the public use the Constitution demands.

In the Fifth Amendment, property is mentioned in the same breath as life and liberty because it is hard to imagine either of the latter being put into practice without the enjoyment of the former. Although powers such as eminent domain will always bring a certain level of grief, even bitterness, it is vital to ensure that the harm is significantly outweighed by the public benefit at large and not the interests of a few developers.

Sponsored

Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.

Sponsored

Topics

, ,