In-Depth: Sponsoring Rep. James Sensenbrenner (R-WI) introduced this bill to to provide American citizens with the means to protect their private property from inappropriate claims of eminent domain:
“The freedom to own and protect one’s private property is foundational to our country. Congress must fight to protect the private property rights of Americans and reform the use and abuse of eminent domain… I’m hopeful this legislation will pass and restore the government’s power of eminent domain to its limited, proper role.”
Introducing an earlier version of his bill in 2013, Rep. Sensenbrenner also argued that eminent domain for public economic good is largely opposed by most Americans, and that eminent domain hurts rural communities:
“A large majority of Americans oppose the taking of private property for private uses, even if it is for the public economic good. Congress should fight to protect private property rights and reform the use and abuse of eminent domain. [Under Kelo], farmers in Wisconsin are particularly vulnerable. Farmland is less valuable than residential or commercial property, which means it doesn’t generate as much property tax as homes or offices. [Eliminating eminent domain for economic purposes] would restore the property rights the Supreme Court took away.”
Rep. Jerrold Nadler (D-NY) opposes this bill on multiple grounds, including its necessity, potential effect on future developments, and constitutionality. In his remarks at the markup of the bill, he stated:
“To begin with, the bill is a response to Kelo v. City of New London, a now well-established 13-year-old Supreme Court decision to which most state legislatures have already reacted by curtailing their eminent domain authority. Worse yet, this measure could potentially devastate the finances of state and local governments. It also raises federalism concerns.”
This legislation has the support of two cosponsors, including one Republican and one Democrat. This bill is supported by conservative and libertarian advocacy group FreedomWorks, whose President, Adam Brandon, said:
“The tyranny of eminent domain is one that threatens individual liberty, rural communities, and the economy of the United States. Rural America is the backbone of this country and agricultur[e] is the backbone of this economy. There is a moral argument to be made: hard-working Americans should not have to live in fear that their homes, farms, and businesses are susceptible to being taken by the government…. The cornerstone of liberty is the right to private property. Allowing the government to step in and take property on a whim for an alleged public good seems controversial to say the least, but letting the federal government transfer ownership of property from one private entity to another is unconstitutional.”
Of Note: Eminent domain is based on the Fifth Amendment, and its early uses were primarily for public works — large-scale projects such as the Tennessee Valley Authority’s utilities or the post-WWII construction of the interstate highway system.
However, in 1954, the Supreme Court ruled in Berman v. Parker that private projects would meet eminent domain’s definition as long as they had a “public purpose.” Under this rationale, the court approved a slum-clearance plan of the government of Washington, D.C., and in the latter half of the 20th century eminent domain was used to clear “blighted” areas of American cities for redevelopment, turning poor neighborhoods into new developments. Over the past several decades, the definition of “blight” has become increasingly expansive, enabling governments to take habitable neighborhoods away in order to give them to private developers who promise increased tax revenue and jobs.
Since World War II, eminent domain has displaced some three to four million Americans. Additionally, eminent domain use disproportionately affects minorities, harming vulnerable communities and individuals.
While many states have enacted eminent domain reform since the U.S. Supreme Court’s 2005 decision in Kelo vs. City of New London, which broadly defined “public use,” most of these reform efforts have been insignificant. And, despite repeated efforts, Congress has yet to pass legislation limiting the use of eminent domain to truly public, rather than economic, uses (the Kelo decision maintained economic benefit as a potential “public use” case for eminent domain).
However, the magnitude of this problem may be minimal, even in the absence of a federal prohibition on using eminent domain for economic purposes. In a survey of officials in 153 municipalities with populations of greater than 100,000 residents, Jerold S. Kayden, professor at the Harvard University Graduate School of Design, found that only 207 properties were taken between January 2000 and December 2004, representing an average of less than two properties per city in five years. Therefore, Kayden concluded, state condemnation of private property for promoting economic growth is uncommon in the United States.
Additionally, it isn’t clear that all uses of eminent domain for economic development purposes are inherently harmful. In the case of blight, the upgrading of rundown areas to build affordable housing is an appropriate use for eminent domain that increases the economic potential of an area.
Summary by Lorelei Yang(Photo Credit: Feverpitched / iStock)