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Running head: EMINENT DOMAIN AND EMINENT DOMAIN ABUSE 1

Eminent Domain and Eminent Domain Abuse

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EMINENT DOMAIN AND EMINENT DOMAIN ABUSE

Eminent Domain and Eminent Domain Abuse

Introduction

The USA has a long history of applying Eminent Domain policy in acquiring property

for civic utilization. The policy does not require constitutional recognition and pertains to

every sovereign government. It is a feature of independence. But, the fifth constitutional

amendment asserts that personal property should not be acquired for community utilization

devoid of significant reimbursement. Up-to-date, when the federal government applies the

Eminent Domain policy, the law expects it to compensate the affected owner justly and

according to the property’s fair market value. The Eminent Domain provision has been used

to provide water supply, as defense readiness grounds, constructing public infrastructure and

facilitating transport. Conversely, the US citizens have a right to private property and

government should unreasonably interfere with the utilization of the property.

The Eminent Domain Policy Problem

During the Kelo v. City of New London case Court held that governments have the

right to acquire private property and transfer its ownership to other private individuals or

groups for economic development. The decision evoked a tremendous political reaction.

Many Americans viewed this decision as Eminent Domain abuse. Though negative publicity

and strong reforms from various states reduced the misuse, there was no ultimate solution to

the same (Merriam, Ross, & American Bar Association, 2006). As noted by various

attorneys, Eminent Domain policy abuse is currently making a comeback in different states.

Berliner Dana, who represented property owners in the case and a leading Eminent Domain

expert assert Eminent Domain abuse had subsided following consistent cases (Somin, &

Somin, 2017). But it has emerged in various states.

EMINENT DOMAIN AND EMINENT DOMAIN ABUSE

A new wave of Eminent Domain abuse has begun. For instance, California

redevelopment agencies had been abolished in 2011 (Somin, & Somin, 2017). But the states’

powerful development interests’ and cities have launched a ballot initiative to restore the

agencies and increase their authority to seize private properties for private projects. Also, the

Colorado Denver suburbs have been condemning private property for the aim of establishing

shopping malls (Somin, & Somin, 2017). Other states such as Illinois, Minnesota, and

Alabama have given more powers to municipal and state agencies to condemn private

property for industrial development and sports stadiums. Politically linked developers,

casinos, and other groups have taken advantage of the situation to lobby for decisions that

benefit them at the expense of the politically weak and destitute citizens. They are out to go

against the Kelo reforms.

As states try to readopt the Kelo decision, American citizens are ready to condemn the

act. Americans see the policy as an attempt to deprive them of their rights to private

ownership and use. They forbid personal property seizure by the government for ‘public

purpose’ as conceived by politicians. Instead, governments should seize property for pure and

clear civic use. The constitution offers guidelines for private property condemnation. For

many Americans, there should be no statute that grants authorities to apply Eminent Domain

in economic development projects. Considering the Kelo decision, Eminent Domain policy

promotes economic development in states. Such projects are also sources of revenue. But,

individual properties are affected. Promotion of this policy would lead to loss of property by

American citizens in the name of Eminent Domain policy application. Such an action would

also deprive them of their rights to private property.

The Eminent Domain policy problem can be solved from two perspectives. If the

Kelo decision is followed, then individual property owners should give out their property

EMINENT DOMAIN AND EMINENT DOMAIN ABUSE

willingly and without any coercion. A proper and substantial compensation should follow.

Otherwise, local, state and federal government should abide the historical and constitutional

provisions on Eminent Domain. The property should be acquired only for public use. In such

a case, there should be a thorough examination to determine that indeed the land’s purpose is

for the public good and not for economic development. Judging the political environment of

the United States and the tendency to use authority in various states, the solution to the

Eminent Domain policy problem is nullifying the Kelo v. City of New London case and

upholding the fifth constitutional amendment as reflected in Bauman v. Ross case.

Paths and challenges in implementation of Eminent Domain

The American president, Donald Trump is currently constructing the barrier wall. He

promised to build this wall as a strategy to prevent Mexican immigrants. Many of his

supporters face the possibility of losing property to pave the way for the passage of the wall

(Alvarez, 2017). The president, through his budget, has allocated funds to obtain holdings

and land required to safeguard the southwest borders. The move establishes the application of

Eminent Domain policy for obtaining individual property for municipal use. But, it put him at

crossroads with his supporters and the Republican Party that has long fought against Eminent

Domain (Alvarez, 2017). The success in implementation of the Eminent Domain policy in

this and other cases require congressional involvement.

The Congress has the power to offer guidelines to the policy while safeguarding the

rights of the American people. Through congress enactments, private property should be

condemned only for public utilization with just compensation. Also, the whether the property

is for public use or not should be ruled by a court disregarding any administrative

determination. The Congress should also define public use as a manner that bars the transfer

EMINENT DOMAIN AND EMINENT DOMAIN ABUSE

from one private owner to another for economic development. Such should happen only

when the property is required by a public utility to achieve a public mission. The Congress

should define a just compensation such that property owners are compensated for all their

costs and losses. Laws enacted by the congress are binding at all government levels and to all

political entities.

The American federal system’s impact on policy process

All America’s political institution have gone goal. Despite their differences, they

promote the rights and freedoms of the American citizens. The USA states have individual

powers. But, they do not have the authority to legislate all issues. The constitution outlines

the powers of the central government and those of various states (Greenhut, 2004). Also, the

Congress has representatives from all states. The congressional decision towards the

implementation of the Eminent Domain abuse would apply to all states. Any other

conclusion against the congress cannot hold. Consisting of the Senate and the executive, the

Congress' decision will not only protect Americans’ private property but also shun land

grabbing in the disguise of Eminent Domain. As a citizen, lobbying groups to condemn

Eminent Domain abuse can push for the implementation of the policy for the benefit of the

ordinary citizen.

Conclusion

Eminent Domain entails the acquisition of private property by a state for public use.

In such a case, the state is expected to offer a just compensation as provided in the fifth

amendment of the US constitution. During the Kelo v. City of New London case, the decision

permitted states and political entities to acquire private land for economic development. The

decision was highly condemned and challenged resulted in a reduction in Eminent Domain

EMINENT DOMAIN AND EMINENT DOMAIN ABUSE

abuse. But, recently, the violation has been witnessed in various states. Also, the building of

the border wall will lead to Eminent Domain for public use. The implementation of the public

domain policy requires congressional intervention. The Congress can nullify the Kelo

decision and uphold the provisions of the Fifth Amendment.

EMINENT DOMAIN AND EMINENT DOMAIN ABUSE

References

Alvarez, P. (2017). Trump's Border Barrier Hits a Wall. The Atlantic. Retrieved 10

November 2017, from https://www.theatlantic.com/politics/archive/2017/04/donald-

trump-border-wall-eminent-domain/521958/

Greenhut, S. (2004). Abuse of power: How the government misuses eminent domain. Santa

Ana, California: Seven Locks Press.

Merriam, D. H., Ross, M. M., & American Bar Association. (2006). Eminent domain use and

abuse: Kelo in context. Chicago, Ill: ABA Section of State and Government Law.

Somin, I., & Somin, I. (2017). A resurgence of eminent domain abuse. Washington Post.

Retrieved 10 November 2017, from https://www.washingtonpost.com/news/volokh-

conspiracy/wp/2014/05/17/the-resurgence-of-eminent-domain-

abuse/?utm_term=.d5633cc351bc

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