Election 2016

Donald Trump, Jeb Bush, Eminent Domain, and the Keystone XL Pipeline,

Face it: Trump is right that the Keystone XL pipeline is only getting built with massive use of eminent domain. Same for most other mega-projects.


There's no question that one of the most memorable exchanges in last night's GOP debate in New Hampshire came over the question of eminent domain, the constitutionally sanctioned taking of private property for public use. Donald Trump is for robust use of eminent domain, including instances that most people would agree constitute eminent-domain abuse. That is, situations in which the property being seized is delivered either immediately or soon after to a private entity (such as the egregious case in which Trump himself worked with Atlantic City officials to kick a widow out of her house so he could expand a parking lot he owned).

Not all eminent domain is abuse, though, even after the U.S. Supreme Court ruled dumbly in Kelo v. New London, the 2005 case that sparked new state-level protections for property owners, that a city could essentially take any property and give it to private developers as long as the planned development would somehow benefit the public via higher tax revenue. (Reason covered Kelo long before the case made it to the Supremes; read our interview right after the discussion with one of the lawyers representing Suzette Kelo, Scott Bullock of the Institute of Justice.)

As Robby Soave has already noted, during last night's debate, Trump clearly lost the audience when he unapologetically defended eminent domain. But he also made a point that received little to no notice but is just as telling as the real-estate mogul's willingness to use whatever levers he can to get what he wants: The Keystone XL pipeline isn't getting built without yuge amounts of eminent domain. And what's more: Jeb Bush, who pushed the Donald out for his willingness to try (unsuccessfully) kick widows out of their homes, agrees.

Check out the exchange, part way in:

TRUMP: …Eminent domain, the Keystone pipeline—do you consider that a private job? Do you—do you consider that…

BUSH: I consider it a public use.

TRUMP: No—no, let me ask you, Jeb. Do you consider the Keystone pipeline private?

BUSH: It's a public use. It's a public use.

TRUMP: Is it public or private?

BUSH: It's a public use.

TRUMP: Real—a public use?

BUSH: Yeah.

TRUMP: No, it's a private job.

BUSH: It's a public use.

TRUMP: It's a private job.

BUSH: Established by the courts—federal, state courts.

TRUMP: You wouldn't have the Keystone pipeline that you want so badly without eminent domain…. You wouldn't have massive—excuse me…you wouldn't have massive factories without eminent domain.

Note that Barack Obama's years-long dithering on giving the OK or not to let the Keystone XL pipeline to built was seen by virtually all Republicans as yet one more sign that the crypto-Muslim was hell-bent on destroying America. Because the extension of the Keystone pipeline crosses the U.S. border with Canada, the president ha sthe authority to halt construction if he determined the construction wasn't in the "the national interest." Obama determined that it didn't. And when Hillary Clinton and Bernie Sanders also eventually came out against the pipeline, it was just one more sign that Democrats, liberals, green-meanies, and whatnot were not just ideologically blinded by the global-warming lobby but were positively rooting for America to become a third-world country. It's an article of faith among conservatives and many libertarians that the pipeline should have been approved.

It's also safe to say that all the candidates on the stage last night support building the Keystone XL pipeline. And it goes without saying that many if not all of them are totally against eminent-domain abuse, which got its sanction from the 1949 Housing Act, championed and signed by Harry Truman as a means of ushering in a vast era of "urban renewal" (the writer James Baldwin quipped bitterly that "urban renewal means 'negro removal.'")

The real question, and one that Trump raises, is whether using eminent domain to build a privately operated pipeline such as Keystone XL constitutes a legitimate use of the process or not. In Texas, pipeline operators avail themselves of eminent domain if they agree to be "common carriers,…a pipeline that will be available at market rates for other companies to use, and therefore in the public interest." The Keystone case is complicated enough that the Institute for Justice, the libertarian public-interest firm behind the Kelo case (and dozens of successful state laws that tightened use of eminent domain at the state level) takes no position on whether the proposed project is a legitimate use of eminent domain:

But Steven Anderson, the Institute for Justice's managing vice president, told ThinkProgress that the group's focus is on making sure eminent domain is reserved for "traditional public uses," and that it does not currently take a position on pipelines in general or Keystone XL in particular. Instead, he said, the group focuses on "obvious private to private transfers."

Is Donald Trump an unabashed supporter of the worst and most-obvious use of eminent domain abuse? Absolutely, and it's one more indicator that he's not a limited-government character.

However, if Jeb Bush and all the other pro-Keystone XL candidates onstage last night agree the pipeline should be built, then they've got a tough question to answer. One so tough that the group that almost singlehandedly brought eminent-domain abuse to light a decade ago hasn't taken a position on the project. Should all the people booing Trump last night be forcing their favored Republican to explain whether he thinks the project should only go forward without using eminent domain? Or at least, that he should clarify (as Bush did) that he believes the pipeline serves a public interest (which is different than "the national interest")?

In 2013, Reason TV offered up "3 Reasons To Build The Keystone XL Pipeline," none of which addressed the question of eminent domain: