In the two years since the U.S. Supreme Court’s now-infamous decision in Kelo v. City of New London, 44 states have passed new laws aimed at curbing the abuse of eminent domain for private use.
Given that significant reform on most issues takes years to accomplish, the horrible state of most eminent domain laws, and that the defenders of eminent domain abuse—cities, developers and planners—have flexed their considerable political muscle to preserve the status quo, this is a remarkable and historic response to the most reviled Supreme Court decision of our time.
Of course, more work remains to be done, in both state legislatures and Congress, to protect homes, businesses, churches, and farms. Indeed, because some states have not passed reforms, and because many reforms are incomplete, it is important to take a step back and evaluate the work that has been done and is left to do. Some states have passed model reforms that can serve as an example for others. Some states enacted nominal reform—possibly because of haste, oversight, or compromise—and need to know what is left to fix. And finally, there are those states that have failed to act altogether, leaving home, farm, and business owners threatened by Kelo-type takings and beyond.
Eminent domain authority carries with it tremendous responsibility. Early in our nation’s history, the U.S. Supreme Court even described it as “the despotic power.” Quite simply, it is the power to remove residents from their long-time homes and to destroy small family businesses. Thus, as the Founding Fathers understood, it is a power that must be used sparingly and only for the right reasons. This understanding is reflected in the Fifth Amendment to the U.S. Constitution that states, “[N]or shall private property be taken for public use, without just compensation.” Most states’ constitutions have identical or similar language—language that is supposed to prevent the use of eminent domain for private benefit by restricting its exercise to only true public uses, like roads, fire stations, and schools.
For most of our nation’s history, courts stayed true to the plain language and intent of the federal and state “public use” clauses, and prevented the taking of property for private benefit. However, those takings began to proliferate as public use was interpreted more broadly. The most significant expansion of the term came with the incorporation of “blight” removal as a public use. At first, blight was used as a justification to remove properties that were real threats to public health and safety (what were historically considered public nuisances, the abatement of which was always allowed pursuant to the government’s police powers). Over the past several decades, however, the definition of blight has become so expansive that tax-hungry governments now have the ability to take away perfectly fine middle- and working-class neighborhoods and give them to land-hungry private developers who promise increased tax revenue and jobs.
Open-ended blight designations provide a way for local governments to circumvent the public use requirement. The Kelo decision then obliterated the federal public use requirement by equating “public use” with “private use.” Under Kelo, local governments can condemn homes andbusinesses and transfer them to new owners as long as government officials think that the new owners will produce more money with the land. As Justice O’Connor stated in her dissenting opinion, the result is that “[t]he specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
The Supreme Court did get one thing right in Kelo: states are free to enact legislation that restricts the power of eminent domain. True eminent domain reform should start with states narrowing their laws’ definitions of public use. State legislatures need to establish that a public use means that the government or the public at large owns, occupies, and has a definite right to use property acquired by eminent domain. The use of eminent domain to transfer private property from one party to another for “economic development” should specifically be excluded as a public use.
Ideally, state legislatures should enshrine the above definition of public use not only in their state laws, but also in their state constitutions. Eminent domain affects one of our most fundamental rights—the right to own property. Thus, protections against its abuse should be anchored in state constitutions so that they will be secure from subsequent attempts by cities, developers, and others that benefit from eminent domain abuse to weaken them.
Of course, as noted above, blight is a device that allows local governments to abuse the power of eminent domain. Thus, any reform that fails to address the issue of blight is inadequate and leaves home and business owners at significant risk of being victims of abuse. State legislatures should either eliminate the use of eminent domain for blight or redefine the term narrowly so that it refers only to individual properties that directly threaten public health and safety. Unless open-ended definitions of blight are changed, blight designations can be applied to any neighborhood—no matter how nice—that politically connected developers desire.
Also, since taking away someone’s home or livelihood is such a severe act, when the government uses eminent domain, the burden should be on it to prove a legitimate public use. Instead of giving deference to legislative determinations of public use, courts should make governments show that they are using eminent domain properly.
While other provisions—such as providing sufficient notice of takings—are helpful in reform legislation, the components of reform discussed above are the most important because they directly put the brakes on private-to-private transfers of property for private gain.
In this report card, we have evaluated the quality and strength of reforms that have passed in the states, both so that legislators can know what is left to do and so that citizens can find out if they are really protected from eminent domain abuse. In grading reforms in this report card, we have taken into account the criteria for good reform noted above, keeping in mind the basic question, “How hard is it now for the government to take a person’s home or business and give it to someone else for private gain?” The states in which it is now impossible or extremely difficult get high marks; those in which it is easy get low marks. States that failed to pass any eminent domain reform received failing grades.