Eminent Domain

No, Eminent Domain Is Not an 'Obscure Legal Issue'

Credit Trump with bringing a common state and local flashpoint issue into the primaries.

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It's not obscure when it happens to you.
Credit: paparutzi / photo on flickr

In the era of media "clickbait" it's probably pointless and self-defeating to get worked up over a headline, but nevertheless consider this from the Washington Post: "How an obscure legal issue found its way into the GOP race."

The "obscure legal issue" referenced here is eminent domain, the government authority to take private property for public use, authorized by that ancient, yellowing document known as the Bill of Rights of the United States Constitution.

To be fair to journalist Katie Zezima, she never describes it as "obscure" in her reporting, but does accurately describe it as "complicated." And her reporting is useful and relevant, so I don't want to be too critical. But that headline, man.

Eminent domain is not an obscure issue unless you've never had to pay any attention to municipal government, where it comes up frequently. What is unusual, though, is that it is indeed an issue being raised in the primary race for a federal election, where there typically isn't much consideration of the tool.

That's because to the extent that eminent domain powers are abused for the benefit of private developers, it happens on the state or municipal level. It just so happens that we have a private developer running for president. Donald Trump has famously attempted to take advantage of eminent domain to seize private property to expand his hotel and casino in New Jersey. Sens. Ted Cruz and Rand Paul are going after Trump for this not-very-conservative-at-all position on property rights. Zezima notes:

The topic could resonate in the first voting states of New Hampshire and Iowa, where companies have run into stiff opposition after floating the idea of using eminent domain for pipelines or other projects. Eminent domain is a particularly hot issue for many conservative and libertarian-leaning voters, who want to limit the power of government to encroach on personal property. …

In recent days, Cruz released an attack ad detailing how Trump and the local government tried to use eminent domain to force an Atlantic City widow out of the home she owned for decades so that he could use the land for a casino parking lot.

Eminent domain, Cruz's ad states, is a "fancy term for politicians seizing private property to enroll the fat cats who bankroll them. Like Trump." Then it cuts to a clip of Trump saying that eminent domain is "wonderful."

Trump defended eminent domain on Meet the Press, stating that it's necessary for infrastructure projects like roads and schools. But, of course, that's dodging the actual issue, which is using eminent domain to transfer property to people like Trump for private development projects. That was the debate at the heart of Kelo v. City of New London, an extremely controversial 2005 Supreme Court decision allowing for eminent domain transfers of land to private developers that can hardly be called obscure. It resulted in several states passing their own laws setting rules to prohibit or restrict the use of eminent domain authorities to seize property from citizens for private use.

But keep in mind, conservatives haven't exactly been purists on the use of eminent domain either. Zezima notes that there are concerns in Iowa over the use of eminent domain to grab land to accommodate privately owned pipelines. Remember how much Republicans want The Keystone XL Pipeline built? Trump told a crowd in Iowa on Sunday that if they want that pipeline, they have to embrace eminent domain. It's kind of tough to argue that Trump isn't a "conservative" for his eminent domain position without explaining why some types of private development should have access to its benefits, but not others.

We've written extensively about eminent domain (and the abuse of it) here at Reason. Read more here.

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  1. To be fair to journalist Katie Zezima, she never describes it as “obscure” in her reporting, but does accurately describe it as “complicated.

    I’m not sure how complicated it is, either. The plain words in the old, yellowing document (Nice one, Scott, keep that shit up and there’ll be a little something extra in your paycheck) are “public use” which the Supreme court specifically changed to “public purpose”. Once you accept “public purpose”, then yes, it gets pretty damned complicated, because now it means whatever the taking party wants it to mean.

    1. Look, the Constitution was written like 100 years ago, and it’s hard to understand…

      1. And the guys who wrote the Constitution talked like fags.

    2. No, it is complicated.

      The fifth amendment (not the original Constitution) didn’t create the power of eminent domain. ED already existed as a feature of the common law; the fifth amendment merely limits the ED power. And it says “Private property shall not be taken for public use without just compensation, not “private property shall not be taken for private use under any circumstances” as many people seem to assume it does.

      It’s very likely that the writers of the amendment intended for private-to-private transfers to be severely limited if not forbidden, but they didn’t write that. And of course they didn’t intend for what they wrote to apply to state and local governments. So hanging your hat on writer’s intent is going to be a very rough ride.

  2. To be fair to journalist Katie Zezima, she never describes it as “obscure” in her reporting…

    So Zezima’s editor, like those big government GOP candidates, thinks it’s obscure.

    1. “We need a hook… we need a eyecatcha!”

  3. It’s about as obscure as the fucking Hoover Dam. I’m glad my betters in the media (the guardians of truth!) are so well-informed.

    1. Wait, the what dam??

      1. Boulder Dam

  4. In Texas we have one private citizen who wilds the power of eminent domain. Too much detail to type on my phone but his ranch takes up most all the land of one county and everyone on the MUD board are his long term ploys like his ranch manager.

    He has invested heavily in water rights for several decades now and is poised to build pipelines if Austin, San Antone, Or Dallas should run out of water.

    1. J. R. Ewing?

  5. In Texas we have one private citizen who wilds the power of eminent domain. Too much detail to type on my phone but his ranch takes up most all the land of one county and everyone on the MUD board are his long term ploys like his ranch manager.

    He has invested heavily in water rights for several decades now and is poised to build pipelines if Austin, San Antone, Or Dallas should run out of water.

    1. Too much detail to type on my phone

      Yet you typed it twice!

      1. The squirlz needed a change from the spambots.

  6. Trump defended eminent domain on Meet the Press, stating that it’s necessary for infrastructure projects like roads and schools.

    Trump casinos are essential infrastructure.

  7. I love how that sign actually reads as “don’t end eminent domain abuse”. Lol.

  8. As a closet red team supporter, I am outraged, OUTRAGED, that reason.com would be critical of a popular republican candidate during a presidential primary.

    1. don’t they know that we’re one vote away from communism overrunning the white house?!?

      1. If Hillary wins, we’re all going to reeducation camps.

        We can’t let hat happen!

        Vader 2016!

  9. Trump told a crowd in Iowa on Sunday that if they want that pipeline, they have to embrace eminent domain.

    I believe he also said that Ted Cruz wants the pipeline so much because it benefits Canada, which is fun.

    1. You know who else wanted a pipeline?

  10. There is no comparison between the Kelo and Coking cases.

    Unlike Pfizer, no one has ever accused Trump of causing erections lasting longer than four hours.

  11. “Real takings are just too mainstream. I prefer protesting regulatory takings.”

    Richard Epstein’s Glasses.

  12. Does that sign bother anyone else for being a double negative?

  13. Oil pipelines are perfectly legitimate uses of ED. They benefit the public by facilitating transportation of a vital commodity and reducing the danger of spills. They are also nearly impossible to build without ED being used. You’re not going to negotiate with the owners of the thousands of property parcels along the proposed pipeline’s route, each with the ability to hold out and jack up the price.

    With Trump, Pfizer, the NYT, Columbia, Atlantic Yards, and most other abusive ED cases, it’s just a case where a developer could build anywhere but wants a particular piece of land.

    1. Victims: Private parties
      Beneficiaries: Private parties (in the form of reduced costs, reduced spill liability, etc)

      Failing to see how pipelines are a special case. That argument only holds water (ha!) if the government owns and leases the pipeline

      1. Historically, it would be just like private railroads, private power companies, etc.

        But I always wonder if the argument “You’re not going to negotiate with the owners of the thousands of property parcels along the proposed pipeline’s route, each with the ability to hold out and jack up the price.” is really definitive. It always strikes me that were there’s a will (and a profit), there’s a way.

    2. You seem to be saying that ED has any legitimate uses at all, which it doesn’t. Supporting government thugs stealing people’s property as a means to an end is extremely anti-freedom.

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  16. I suppose it would, in theory, be possible to support Keystone XL, while insisting that all the property access had to be obtained voluntarily, non-coercively.

    But I imagine nobody is promoting that position.

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