OPINION: Land Seizure
Right of Kings: Eminent Domain
By Trevor K. McNeil
Hold Them Accountable
Sadly many of the men and women elected to represent the American people; whether at the state or national level, have consistently demonstrated an inclination to put their own interests ahead of all else. Which is partly why petitions, letter writing campaigns and voter registration drives are so effective. Threaten an elected official’s job and you will get their attention.
If The President Does It, It Is Not A Crime
Despite issues of trust and mistrust most people do not feel the government is working directly against them. This general level of trust in government is also part of how injustices and atrocities happen. The last lines of the pledge of allegiance “with liberty and justice for all,” are in some case notably missing. The Founding Fathers revered on a level that approaches the religious, despite some rather uncomfortable historical facts. Indeed, the Founding Fathers added to the Constitution a concept that perhaps would have best been left in old Europe and their autocratic rulers.
It Must Be Okay
Americans are able to overlook and forgive a lot when it comes to government policies and actions. The overall sense being that if the government does it, it must be okay. However, with the situation on the southern border the right of government to seize privately owned property by right of Eminent Domain is once again coming under scrutiny. The issue has been brought to the forefront by Trump’s demand for a “wall” on the Mexican border. The private property owners across four states are potentially affected. Thousands of lawsuits are in the future as Trump pushes for a massive government land seizure.
The Letter of the Law
On paper Eminent Domain appears no worse than any other piece of government legislation. In essence, it states that the government can take private property from private land owners for public use for just compensation. We have all benefited from the new freeway, the extended railroad line, or the new bridge. Rarely, do we remember the property before its conversion. .
Complications
Property taken by Eminent Domain must give a land owner “just compensation” based on market value. This is the principle taken in the most literal form. There are, however, complications and nuances applied. According to a report from the Nov. 17, 2015 issue of U.S. News, there is essentially no universal right to property in the United States, functionally the main tenet separating Laissez-Faire Capitalism and Marxist Socialism.
Weasel Words
Terminology is a major reason in extending the reach and power of Eminent Domain. It allows the government to acquire private property from potentially unwilling owners for public use. However, the term “public use” is open-ended and can be easily manipulated by those so inclined. Local governments have been known to use Eminent Domain to wrest ownership of homes and businesses for private use under the guise of the new use providing increased public benefit (ie taxes). The tiny but vital difference between “public use” and “public benefit” being too small for many to detect. Yet there is a deep distinction.
Conscious Intent
Legislators know this. In some cases the requirement for public use is ignored entirely. Few even making the effort to look into each case individually. It happens all the time. How often can a statute be misapplied before the process becomes suspect. There seems to be a deliberate pattern of Eminent Domain abuse.
Justice for Whom?
Even the prescript for “just compensation” as according to market value is not a safeguard. There are at least three factors that make this stipulation weak, if not moot. First, it is based on “subjective value” which is a meaningless legal standard. Second, it is common practice to offer much less than the land is worth. When the owner logically refuses, make the offer again and again, sometimes over a course of up to 20 years, until the potential buyer (government entity) takes the owner to court.
Up to the Courts
The courts usually side with the buyer (government entity) and set the original, much lower offer, as a fair compensation. Third, the compensation can be devalued even further as it is often based on the market value of the land when the offer was first made, which could have been years before. Even though, generally speaking, land tends to gain in value over time.
Bad Situation
All of which can result in those forced to sell by Eminent Domain are getting much less than the land is worth and in some cases they are barred from buying another piece of property, because prices on other potential properties increased normally. Yet the government continues to do this with little to no opposition.
Moot Point
Despite these issues, there are those who support the right of Eminent Domain and actively advocate for it. Donald Trump being one such supporter. Their argument based on the assertion that a single stubborn landowner ought not be able thwart the progress of a project that is ostensibly for the greater, public good.
Surface Level
Much like Eminent Domain itself, this argument sounds reasonable . There is a problem however. The scenario on which this argument is based is absurd. For such an argument to be relevant would need a single piece of land among many that could not be circumvented and an owner so rock-ribbed that they would not sell for any price.
Re-Think the Pro
This argument is absurd. Such an argument assumes a single piece of land among many that could not be circumvented and an owner so rock-ribbed that they would not sell for any price. Should this highly unlikely situation arise it is more likely a sign that the project should be re-thought if not scrapped. It is in many ways an instance of a government power in search of an issue.
The Plot Sickens
The over-extension of Eminent Domain is nothing new. Abuses are well-known. Recent developments in the politics of the United States have made Eminent Domain more dangerous than it has ever been before. Not least because of the proposal to build a wall between the United States and Mexico.
Just the Facts
The U.S.-Mexico border runs 1,954 miles, spanning through the southern reaches of Texas, Arizona, New Mexico and California. A massive section of land running past several swaths of privately owned land. Some of which, particularly in Texas, have been in the same family for generations.
Land Grab
The proposed border wall would cause a seizure of land legitimized through Eminent Domain on a level rarely seen
before. Both in terms of the wall itself as well as access and patrol roads. Compromising, at least in part, thousands of privately owned properties. Certainly not since the mid-20th century when massive urban renewal projects seized homes to create “revitalized” cities across the United States.
Conflict of Interests
For the most part, the sort of American conservatives who generally support the wall are also broadly against government over-reach, and are in favor of individual and private property rights. What could result on the southern border closely resembles that used by the British monarchs who first inspired the idea. The logistics of building a wall along the border between the United States and Mexico would need Republicans nation-wide to compromise, if not betray, the cardinal principles of their stated world-view.
