What is Eminent Domain?
Eminent domain is the power of government to forcibly take land or other private property for public use. In the United States, the federal government is granted the power of eminent domain by the Fifth Amendment, but such power may only be exercised if the government provides “just compensation” for property taken.
In practice, eminent domain has been used to seize land for parks, railroads, military installations, environmental conservation, and border control measures.
Eminent domain exists on the state level as well, and in many cases the power has been delegated to counties and municipalities. Laws and practices vary by jurisdiction, but many common uses of state and local eminent domain include running power lines, water pipes, and gas mains, creating parks, and other forms of urban improvement.
Property owners who wish to refuse government eminent domain orders will have to fight the process in court. Typically, individuals will either claim that the compensation offered is not just or that the proposed use for the land does not benefit the public and thus fails to meet the public use requirement. Other complaints can be raised depending on state and local statute.
How is Eminent Domain Abused?
As with many government powers, eminent domain can and has been abused. The most recent clear example of eminent domain abuse has occurred on the U.S.-Mexico border. In the process of constructing the southern border wall, the federal government would need to seize thousands of acres of private land.
In a 2017 essay for the Cato Institute, David J. Bier identified the unsettling fact that the government can take land as soon as a they file a “condemnation proceeding.” This process is called “quick take” eminent domain, and it enables the government to swiftly seize property before just compensation has been determined or paid. An NPR analysis showed that the cases arising from “quick take” eminent domain abuse took an average of three years to conclude, with some lasting as long as ten or more years.
Another form of eminent domain abuse occurs when government takes land for an overly broad “public use.” A 1954 Supreme Court case, Berman v. Parker, expanded the definition of public use to allow “urban renewal” plans. In practice, Berman allowed states and cities to seize perfectly good houses and repurpose them for private development, as long as they claimed such seizures were part of a broader program to eliminate blight. A subsequent case, Kelo v. City of New London, (2005), the Court ruled that mere economic development was a sufficient reason for cities to take unblighted property. Such expansion of the public use requirement enables government to take nearly any property it wants and chalk it up to “urban renewal” or “economic development.” Post-Kelo, cities and developers have engaged in unprecedented levels of eminent domain abuse.
Eminent Domain Abuse Examples
Here are a few short examples of eminent domain abuse:
- In 1999, Palm Beach County seized the home of John and Wendy Zamecnik (along with many others) to build a private golf course. Despite protests and legal challenges, the county condemned the house and the Zamecniks were forced to move. In 2005, the plans to build the course were abandoned. (Castle Coalition).
- In 1997, a mall developer in Hurst, TX, expanded a mall over 170 perfectly maintained homes. The city forced the residents out using eminent domain and won in court. (KERA News).
- The Iowa Supreme Court in 2019 allowed the state to seize privately owned farmland in order to continue construction of the controversial Dakota Access oil pipeline. (Purdy & Bailey, LLP).
- Bremerton, Washington in the 1990s condemned dozens of private residences near a sewage treatment plant in order to “create an odor easement,” but instead sold the seized land to a car dealership for $2 million. (MentalFloss).
How Eminent Domain Abuse Harms the Poor
In a 2015 article “How Eminent Domain Abuse Harms the Poor,” Ilya Somin highlights the disproportionate impact of eminent domain abuse on poor people and minorities. Cities seize property to develop the economy, but often wind up harming it instead. They use Kelo to justify taking homes, displacing families, and shuttering businesses, which ravages communities and destroys local economic activity, and time after time whatever is erected in their place fails to create jobs or growth. Poor people are pushed out of their neighborhoods and replaced by parking garages and shopping malls. Those with fewer resources are also far less equipped to fight eminent domain abuse in court and are thus left helpless in the face of the state taking their property unfairly.
How to Stop Eminent Domain Abuse
While not all eminent domain ipso facto violates the rights of Americans, there are clearly many disturbing cases of eminent domain abuse. The Supreme Court and state judiciaries have proven over and over that they are unwilling to step in to curb government power. Luckily, there are legislative solutions on the federal, state, and local level to stop eminent domain abuse.
On the federal level, the country ought to implement a bill like former Rep. Justin Amash’s “Eminent Domain Just Compensation Act,” which requires just compensation to be set before the government can seize land. This bill would prevent the eminent domain abuse seen on the southern border and allow property owners to get a fair price for their land without spending years in court. Additionally, Congress ought to act swiftly to statutorily limit the definition of “public use” to curb the effects of the 2005 Kelo v. City of New London decision. Public use ought to have clear requirements for public benefit. Vague promises of “economic development” should not suffice. Furthermore, eminent domain requests ought to be constrained to purely public construction. Government should not be able to seize private property to sell it to another private party.
State and local jurisdictions ought to follow suit. Many states have narrowed their definitions of public use in the wake of Kelo, and other states should do so as well. State legislatures should prevent cities from engaging in eminent domain abuse. It could also be beneficial for states to establish some sort of oversight commission to enforce such limitations and provide private property owners quick and inexpensive recourse when they believe themselves to be victims of eminent domain abuse.