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While national attention focused on the defeat of the "personhood" initiative in Mississippi on Tuesday, voters there approved Initiative 31, an amendment to the state constitution that bans the use of eminent domain to transfer property from one private owner to another (h/t Jim Roos, Missouri Eminent Domain Abuse Coalition) with 73% of the vote.

Eminent domain, where government takes private property for public use, is regulated by the Fifth Amendment to the Constitution, which says, "...nor shall private property be taken for public use, without just compensation." The issue of what constitutes a "public use" has been expanded by court decisions over several decades, with the U.S. Supreme Court's 5-4 ruling in Kelo v. City of New London that economic development qualifies as a public use, even when the property is being transferred to a different private owner.

Eminent domain is heavily entwined with economic development subsidies, in particular tax increment financing. Removing "blight" is often a reason a government can resort to eminent domain, and some variant of blight must be shown in most states to allow the use of tax increment financing. I argued in Competing for Capital that fighting subsidies often attracts "strange bedfellows" coalitions, because they can be criticized on efficiency, equity, and environmental grounds, potentially pulling opponents to subsidies from across the ideological spectrum.

For similar reasons, we see unusual political coalitions fighting private-to-private eminent domain. For one thing, these cases usually involve subsidies, as did Kelo. People understandably don't want to lose their homes, but they are especially incensed if they are losing their homes to enrich a company or private developer. Moreover, such cases can heavily impact minority communities (if property values are lower there) and small businesses (especially if compensation only takes property value into account, but not the value of the ongoing business). In Mississippi, the Southern Christian Leadership Conference and the National Federation of Independent Businesses filed a joint amicus brief with the state supreme court to keep Initiative 31 on the ballot, represented by the libertarian Institute for Justice. Talk about strange bedfellows!

This coalition can break down, however. As Ilya Somin at the Volokh Conspiracy points out, when eminent domain reform is paired with other measures, it often fails. He gives the examples of Proposition 98 in California, which included rent control restrictions, and Proposition 90, which included "regulatory takings" provisions (these limit government ability to adopt new regulations). Understandably, those additions saw off the liberal wing of the eminent domain reform coalition. "By contrast," he says, "all twelve 'clean' anti-Kelo measures have passed, usually by lopsided margins..."  The Institute for Justice, however, does push "regulatory takings" provisions. To its credit, it did not demand them as a price for defending Initiative 31 in court.

With the passing of Initiative 31, Mississippi has given subsidy opponents leverage as well as protecting property owners from having to transfer their property to private developers, which often translates into an additional subsidy.

Originally posted to Kenneth Thomas on Thu Nov 10, 2011 at 11:24 PM PST.

Also republished by ClassWarfare Newsletter: WallStreet VS Working Class Global Occupy movement and Community Spotlight.

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Comment Preferences

  •  It's important to reform eminent domain in a (17+ / 0-)

    clean way, banning private-to-private eminent domain without pretending the fifth amendment protects property from regulation.

    Lea: "You're not going to fly into an asteroid field, are you?" Han Solo: "They'd be crazy to follow us, wouldn't they?"

    by Kimball Cross on Fri Nov 11, 2011 at 04:19:18 AM PST

  •  This kind of reform needs to spread. (25+ / 0-)

    There have been too many backroom deals made that, for all intent and purpose, steals peoples homes and land in order to make way for more and bigger homes and shopping centers.  

    I can understand eminent domain so highways, schools and other public works can be built.  But reselling to subdivision developers?  No way.

  •  All you have to do is look to Chicago and what (5+ / 0-)

    Daley did to get the land for the O'Hare expansion.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Fri Nov 11, 2011 at 05:15:33 AM PST

    •  That is classic eminent domain (5+ / 0-)

      "public use," so it either doesn't apply, or the initiative might be poorly worded -- ok if the airport is leased to a private vendor but not ok if it's sold.  

      Kelo fits in the bad policy outcome right constitutional decision paradigm in my view, so going through the legislative process is the way to do it.

      "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

      by Loge on Fri Nov 11, 2011 at 09:03:31 AM PST

      [ Parent ]

      •  Correct (0+ / 0-)

        Airports are public facilities. Industrial parks are not.

        •  "public facility" (1+ / 0-)
          Recommended by:

          is not what's in the constitution.  It's public use, and the court construes that to mean "public benefit."  The trouble with the criticisms of Kelo as a constitutional matter is you have to give up too much to overturn it, in terms of standard of review, line drawing issues (what's a stadium in this analysis?  or  supermarket in areas that only have corner stores without fresh produce?), and as the diarist notes, the IJ wants to open a wedge to go after regulatory takings.    In any event, the 5th amendment only creates the paying compensation requirement.  It doesn't say at all that "public use," however one wants to define it, is the only circumstance in which eminent domain can be exercised, so a textualist criticism gets you exactly nowhere.

          Anyway, what happens if the legislature pays just compensation for the land, keeps it, and simply leases it out at $1 per year for 99 years.  You've solved zero problems, including the most important which is don't do the boondoggle in the first place.  

          "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

          by Loge on Fri Nov 11, 2011 at 10:29:42 AM PST

          [ Parent ]

          •  I've often wondered why... (2+ / 0-)
            Recommended by:
            ColoTim, antirove

            it is always the little guy that loses in eminent domain cases.  Walmart has used eminent domain to get the locations they want for years.  Why can't we, the public, use eminent domain to take major corporations property for public use?

            Since Bank of America has trillions of dollars in toxic holdings, there fair market value should be in the negative and our government should sieze them and use them for public use.  

            I know it would never happen but why?  If they can take our land for public use and since they are "people" just like us...  Just saying...

            "Perhaps the sentiments contained in the following pages, are not YET sufficiently fashionable to procure them general favour..."

            by Buckeye Nut Schell on Fri Nov 11, 2011 at 01:35:59 PM PST

            [ Parent ]

          •  No Need To Make It Complicated (1+ / 0-)
            Recommended by:
            David Kaib

            1. "Public use" requires public ownership.

            2. Scams to get around ownership rules (such as long-term "leases" that effectively transfer ownership) have long been recognized, and rejected, in other contexts.

            On the Internet, nobody knows if you're a dog... but everybody knows if you're a jackass.

            by stevemb on Fri Nov 11, 2011 at 03:49:13 PM PST

            [ Parent ]

            •  what if there's market rent? (0+ / 0-)

              and eminent domain is just used to get rid of a hold out, as is it's original economic purpose. No "scam" there.  An office park isn't a good example, but I think legislatures should have the right to decide for themselves what is a public use -- as i said, stadia are a mixed bag, but a grocery store?  If the voters want to put a binder on legislatures, that's ok too.  

              "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

              by Loge on Fri Nov 11, 2011 at 05:26:11 PM PST

              [ Parent ]

              •  The Whole Point Of Having A Constitution... (0+ / 0-)

       that legislators don't "get to decide" certain things. A legislature that is empowered to change the definition of "public use" to encompass private use is also empowered to, for instance, change the definition of "sedition" to encompass political dissent.

                On the Internet, nobody knows if you're a dog... but everybody knows if you're a jackass.

                by stevemb on Mon Nov 14, 2011 at 09:55:08 AM PST

                [ Parent ]

                •  that begs the question (0+ / 0-)

                  it assumes a definition of public use that isn't defined on the face of the text.  What's more, linguistically, "public use" might or might not be exclusionary of all other uses of eminent domain.  So, the Kelo court properly looked to history, where for decades, liberal and conservative justices alike accepted that (a) public use is broader than you're assuming and (b) the proper remedy is the political process.  Does the understanding of "interstate commerce," too, have to remain immutable?  A definition of "sedition," by contrast short-circuits the political process and warrants greater scrutiny.  U.S. v. Carolene Products, fn. 4.

                  "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

                  by Loge on Mon Nov 14, 2011 at 10:00:33 AM PST

                  [ Parent ]

  •  I recall this was a big issue (7+ / 0-)

    a few years back, and that it was entwined in some sinister way with secretive billionaire money but it has completely fallen off my radar. I think it the secret money was flowing into backing eminent domain reform that involved "takings." (It may have been the same people that were behind TABOR, which was a much more front-and-center issue that nearly came here to Ohio). If this becomes widespread, I guess I'll have to bone up again. So much to fight, so little time.

    Take the "Can't(or)" out of Congress. Support E. Wayne Powell in Va-07.

    by anastasia p on Fri Nov 11, 2011 at 07:49:17 AM PST

  •  Here in CA Jerry Brown went in full force (18+ / 0-)

    against "redevelopment scams".  Here we give a lot of taxpayer money to private developers to build their projects.  It's a huge scam full of crony capitalism, and sweetheart money for private developers to build projects that return guaranteed profits over the long run.

    •  It's even more interesting in rural areas (4+ / 0-)
      Recommended by:
      chimpy, charliehall2, mrkvica, antirove

      The redevelopment process is supposed to be reserved for use in "blighted" areas.  but we don't really have those in the classic sense up here.  So our local councils have defined blighted to mean empty - using redevelopment monies to fund infrastructure for new development on empty land.  Even that's a sort of complex issue - by using those monies we may in fact get development with better infrastructure and better planning than we might otherwise - good streets, lighting, bike paths, etc.  On the other hand, if the redevelopment money weren't there to provide the infrastructure, much of that development would not happen at all and that would likely be a good thing.

      "Wouldn't you rather vote for what you want and not get it than vote for what you don't want - and get it?" Eugene Debs. "Le courage, c'est de chercher la verite et de la dire" Jean Jaures

      by Chico David RN on Fri Nov 11, 2011 at 09:18:33 AM PST

      [ Parent ]

  •  Good on Mississippi. (15+ / 0-)

    I seldom say that.

    Here in Oregon, opposition to an LNG pipeline finds itself in an eminent domain fight, too.

    Dear Ayn Rand fans: Please, would each of you just go all John Galt, immediately? Thank you.

    by CitizenJoe on Fri Nov 11, 2011 at 08:10:31 AM PST

  •  Thanks for bringing this important issue to (3+ / 0-)

    our attention. We have a number of TIF initiatives in NM which, while they don't involve eminent domain, are disturbing.

    And even though it all went wrong I'll stand before the Lord of Song with nothing on my tongue but Hallelujah! -Leonard Cohen .................@laurenreichelt

    by TheFatLadySings on Fri Nov 11, 2011 at 08:20:17 AM PST

  •  Actually.... (8+ / 0-)

    ......all the Kelo decision did was punt the issue to the states. They said that while private redevelopment COULD count as "public" use, states and localities could certainly ban that practice if they wanted to, and that's what has happened in Mississippi. It's nice to see what is apparently a real law designed to protect small property owners rather than some earlier efforts that were well disguised efforts to gut local government treasuries.

    In reality, it was an odd case where the "liberal" majority issued a constructionist ruling, while the conservative minority attempted to create an individual right where none explicitly exists (not that there's anything wrong with that, except that they were being very hypocritical in this case).

    No one ever created a vibrant economy by building houses for each other. Houses are built because there is a vibrant economy.

    by Doug in SF on Fri Nov 11, 2011 at 08:29:41 AM PST

    •  They don't even need to ban the practice, (1+ / 0-)
      Recommended by:

      but it's probably a good idea that they do.  All they need to do is not take private property for public use, however defined.  Most deals of this kind are boondoggles, though the liberal wing rightly exercised restraint in not telling municipalities that their plants/shopping centers/hockey arenas are stupid.

      "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

      by Loge on Fri Nov 11, 2011 at 09:05:51 AM PST

      [ Parent ]

      •  so no one should ever exercise (2+ / 0-)
        Recommended by:
        StrayCat, charliehall2

        eminent domain? You write,

        All [governments] need to do is not take private property for public use, however defined.

        I am completely in favor of not taking private property in order to transfer it to other private owners and enrich people. On the other hand, if the Feds wanted to take a corridor by eminent domain to set up mag-lev trains in the NE corridor, I would be all in favor of it.

        "You try to vote or participate in the government/ and the muh'fuckin' Democrats is actin' like Republicans" ~ Kweli -8.00, -6.56

        by joey c on Fri Nov 11, 2011 at 09:45:49 AM PST

        [ Parent ]

        •  Well, the holding of Kelo (0+ / 0-)

          is "public use" in the 5th amendment applies to private-private transfers where there is a "public benefit." Your formulation seeks to revisit the constitutional question in Kelo -- I don't disagree about being in favor/not in favor, but it depends on what level we're talking.  How I'd vote on a particular or how I'd rule on the question in the abstract?  The point in highlighting the distinction is that the first check against eminent domain abuse is that local officials have to first decide whether to go forward with the project in the first place.  

          Upthread I distinctly endorsed the idea of taking people's houses to expand an airport, or at least chose not to be upset about it.

          "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

          by Loge on Fri Nov 11, 2011 at 10:11:33 AM PST

          [ Parent ]

          •  I certainly want to revisit Kelo (0+ / 0-)

            though there's no point with the scum we have on the supreme court right now.

            in the abstract, i think kelo is a travesty. by definition, the public interest is not furthered by private profit, but corruption sure is.

            yet some people's dislike of eminent domain runs so deep they can't stomach it in the case of airports or trains or other core government infrastructure needs, and i hadn't read your upthread comment so i was wondering whether that was your perspective and am pleased to hear it is not.

            "You try to vote or participate in the government/ and the muh'fuckin' Democrats is actin' like Republicans" ~ Kweli -8.00, -6.56

            by joey c on Fri Nov 11, 2011 at 10:25:50 AM PST

            [ Parent ]

            •  Considering the dissenters (0+ / 0-)

              were O'Connor, Rehnquist, Scalia, and Thomas, that's a lot of scum.  Of the majority, only Kennedy, Ginsburg, and Breyer remain, but O'Connor's libertarianism is gone as well.  A counter-ruling on Kelo would probably be more along the lines of what the IJ wants -- a broad decision that tries to blow up regulations in the guise they are "takings."  O'Connor's dissent presents all sorts of line drawing questions for what lies in the middle between building a school and building an office park, but as she's Justice O'Connor, she's willing to live with that.  Thomas's separate dissent I assume was crazy.  It's been a while.

              "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

              by Loge on Fri Nov 11, 2011 at 10:39:10 AM PST

              [ Parent ]

    •  Please, let's all talk about Kelo accurately (5+ / 0-)

      I want to reemphasize what Doug in SF says (Interesting, I am one too).  The private to private transfer notion isn't the Supreme Court's doing, but reporting on Kelo is rarely accurate.  

      What Kelo did not do is require private-to-private transfers, but instead what it did is said that the question of what is "public use" is a policy decision left to states.  In Kelo, it wasn't the Supreme Court that said public use included private-to-private transfers, it was the Connecticut legislature that did that.  All Kelo did was leave the definition to the entities.  So, quite rightly, we see a lot of states bannning the practice, while those that want to define redevelopment as public use still do that also.


      Intelligent, passionate, perceptive people will always disagree, but we should not let that disagreement, however heartfelt, lead us to become deaf to those better angels of our nature.

      by Mindful Nature on Fri Nov 11, 2011 at 09:36:11 AM PST

      [ Parent ]

      •  how is that different (0+ / 0-)

        from what Doug said?

        Passengers: Feel free to rearrange the deck chairs, but please remember that the bridge is off limits.

        by happymisanthropy on Fri Nov 11, 2011 at 09:52:07 AM PST

        [ Parent ]

        •  it isn't! I just wanted to echo the point... (2+ / 0-)
          Recommended by:
          happymisanthropy, mrkvica

          This one drives me nuts because:

          1) reporters ALWAYS get this wrong and report it like "the Supreme Court is taking away old women's homes and giving them to bad developers" when it wasn't the Supreme Court that did that, it was New London and Connecticut

          2) That frame above feeds into the general paranoia that the courts are evil and illegitimate (though these days I'm not sure I disagree) and shouldn't be trusted because they're "activist" whatever that means.

          Thus, I'm just being a human microphone or something by putting a different title on my commet so people can see what hte thread is about.

          Intelligent, passionate, perceptive people will always disagree, but we should not let that disagreement, however heartfelt, lead us to become deaf to those better angels of our nature.

          by Mindful Nature on Fri Nov 11, 2011 at 09:55:53 AM PST

          [ Parent ]

      •  I'm not sure I quite agree (0+ / 0-)

        The Supreme Court said that states could give more protection to property owners than Connecticut did. But, it was necessary for states to act affirmatively. In states that have done nothing, private-to-private eminent domain is legal. They did not have to change their laws to match Connecticut's to make it legal. The Kelo decision made it legal. So I guess I'd say that Kelo changed the default situation.

  •  This reminds me of the sweetheart (6+ / 0-)

    deal the Texas Rangers (including George W. Bush) got when they built the stadium in Arlington.

    Here is an article that gives some of the flavour:

    Back in the spring of 2000, Joe Conason had a great article in Harpers about George B. Bush and devoted a bit of it to the egregious shenanigans around the Rangers' use of eminent domain.  IIRC, apparently some cronies would cruise the area and if they saw a property (even though it was nowhere near the proposed stadium) they liked the looks of they exercised eminent domain and scooped up the property for themselves.

    I couldn't retrieve this article when I tried several years ago so I'm sorry I can't give a link.  It has astonished me ever since that the MSM completely ignored Conason's article.  He laid out so much dirt in it that it should have buried Bush's presidential plans.  Instead?  Crickets.  To my mind it is one of the greatest derelictions of duty in the history of journalism.  

    We must, indeed, all hang together, or assuredly we shall all hang separately. B. Franklin

    by Observerinvancouver on Fri Nov 11, 2011 at 10:08:38 AM PST

  •  This would kill the Keystone pipeline! (0+ / 0-)

    It is privately owned and could never be built without eminent domain!

  •  I did not realize that a business (0+ / 0-)

    could be taken only by paying for the land. To me, at the very least a business taken for legit public use should also be paid for the business itself.

    Anyway, thanks for the update on this!

    Where ignorance is our master, there is no possibility of real peace. - Dalai Lama

    by kimoconnor on Fri Nov 11, 2011 at 11:52:32 AM PST

    •  I think in Missouri they pay for buildings too (0+ / 0-)

      Not just the land. Normally property means the improvements as well as the land. I imagine that in some states they might have to pay for the value of a business in some states, but from the small businesses I worked with fighting a TIF in my former home of O'Fallon, MO, the value of the business is not considered in Missouri. I gather this one reason they fought it so hard, successfully in this case.

  •  My God, I approve of a law in Mississippi (4+ / 0-)
    Recommended by:
    All In, mrkvica, antirove, sacrelicious

    Hope for this nation! The broken clock of conservaitsm is right at least once today.

    "Think. It ain't illegal yet." - George Clinton |

    by jbeach on Fri Nov 11, 2011 at 12:09:59 PM PST

  •  Look what GDub and his cronies (2+ / 0-)
    Recommended by:
    antirove, sacrelicious

    Did in Arlington Texas!

    After working on his father's successful 1988 presidential campaign, Bush learned from fellow Yale alumnus William DeWitt, Jr., that family friend Eddie Chiles wanted to sell the Texas Rangers baseball franchise along with the new sports dome; built on land acquired under eminent domain law and built under funding financed through taxpayers' funds backed by a bond issued for its debt. The new home of the Texas Rangers is still being contested in court by the original landowner who has not received payment for the land. - Wikipedia

    "Drop kick me Jesus through the goal post of life" - Paul Craft

    by All In on Fri Nov 11, 2011 at 12:50:50 PM PST

  •  When the corporatist GOP has lost Mississippi... (2+ / 0-)
    Recommended by:
    Amayi, sacrelicious

    ...they're well and truly screwed.  Keep turning that screwdriver.

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