The Right to Take Is “Well Nigh Conclusive?” — Says Who?

One of the tiresome staples of right-to-take eminent domain law is the judicial assertion that a government entity’s decision to take property for what it asserts to be public use, is “well nigh conclusive.” But why, as Justice Thomas put it in his Kelo dissent, why is the government forbidden to enter a private home without good cause, without a warrant, and without judicial supervision, but it can simply bulldoze it to the ground and take title to it without due process? United States v. Dow. The court has not provided an answer to that question, even though it has held that eminent domain is not endowed with some sort of mystical “sovereign prerogative” justifying so extreme a deferential view of the issues presented by it, any more than in the case of a host of other government functions. (see Allegheny County v. Frank Mashuda Co. ).

While no reasoned and clearly articulated reason for such judicial inconsistency has been provided, what emerges from a careful reading of the case law is the notion that the exercise of the power of eminent domain is a purely legislative prerogative, so courts defer to the legislative, democratically-based wisdom. So what’s wrong with that, you ask? Two things. First, when it comes to the Constitution, courts are not so deferential to the legislature in other areas of the law enshrined in the Bill of Rights, and freely review controversies arising from them. After all, the Constitution, is supposed to be the “supreme law of the land” and state judges are bound by it “anything to the contrary in the constitutions and laws of the states to the contrary notwithstanding.” (US Const. Art 6). Second, courts refuse to so much as consider evidence-based arguments that the proposed project for which the subject property is sought to be taken by eminent domain, cannot be constructed, either for economic, physical, or even legal reasons.

OK, so this may be bad, but say the courts, that’s “the law.” But is it? Not really. While courts will tell you at the drop of a hat that takings are the prerogative of the legislature, they often aren’t. They are frequently the legal prerogative of non-legislative bodies like Highway Commissions, flood control districts, redevelopment agencies, etc.  And members of these bodies are not elected — they are typically appointed by, not the legislature, but by state governors who, last time we looked, were members of the executive, not legislative branch of government. It is those unelected appointees who make those “well-nigh conclusive” decisions which property is to be taken, how much of it, and the quality of the taken title (i.e., fee title, leasehold, easement, etc.). Oh sure, the legislature authorizes takings of land for specified purposes — like highways, redevelopment, and the like — but in almost all cases, they do not decide which parcel to take and how much of it. Those decisions are made by local engineers who are certainly not legislators.

We were reminded of all that when reading a recent article in the City Journal, The Power Authority Leviathan, Winter 2016, dealing with the doings of the New York-New Jersey Port Authority:

Established in 1921 in an effort to quell the perennial squabbling between New York and New Jersey over control of New York Harbor, the Port Authority was designed to be unaccountable to the public. Its originators, steeped in Progressive-era faith in technocratic management, envisioned an agency run by disinterested professionals, insulated from the pressures of day-to-day politics. In the 94 years since its founding, however, the Port Authority has proved anything but politically disinterested.

That puts it accurately and concisely. The Authority, and many public bodies like it, are the entities that have the final, “well-nigh conclusive” say-so when it comes to the exercise of the power of eminent domain, even if the courts babble on about the power to take being “legislative” in nature. It often isn’t and the decision-making bodies lack the essential attribute of legislatures: the citizens’ ability to hold its members accountable via the ballot box — i.e., to vote them out of office.

So here is yet another aspect of eminent domain “law” that enjoys much judicial lip service but lacks doctrinal sense.