Friday, April 8, 2016

Feeling the Bern for Eminent Domain

When last we blogged (which was a while ago, my apologies), we learned that Trump won’t dump the Fifth Amendment, Cruz can be TRUSTed to not use eminent domain (unless it’s to build a wall between the United States and Mexico), and Kasich is happily warrior-ing on somewhere in between. Now on to the Democrats!

It’s been a big week for Bernie, filled with ups and downs. First he had a tough meeting with the Daily News Editorial board, then he won Wisconsin, then he noticeably did not attack Clinton in his victory speech, then he went to the other extreme in Philadelphia and said Hillary was not qualified to be President. The Communications team for Senator Sanders must be running on coffee fumes after the busy week they have been having!

As a self-proclaimed democratic socialist, my expectation was that Sanders would be pro-eminent domain given that the Fifth Amendment advances government ownership of formerly private property for a public use. That certainly fits in line with a socialist agenda. And Sanders did not let me down. In December 2007, Senator Sanders voted no on an amendment to that year’s Farm Bill Extension Act, which would prohibit the federal government from taking farmland or grazing land for “parks, open space, or similar purposes.” This makes sense. To grossly oversimplify Sanders’ semi-socialist view:

public parks > private farmland

This led me to Kelo and wondering what would Sanders think. Strong use of government power would not be offensive to Sanders’ philosophy, but the factual end result of the case was a middle-class individual being ousted from her house by a private corporation, and that struck me as antithetical to Sanders war against the economic and political oligarchy. What’s then-Representative Sanders to do? As predicted, Sanders was not hot to trot for Kelo. At the time of the decision, Sanders said, “I believe that the result of [Kelo] will be that working families and poor people will see their property turned over to corporate interests and wealthy developers.” To Sanders credit, that is essentially the same line he has used throughout the entire campaign about, well, everything, so he’s got a consistent message. Again, to oversimplify Sanders’ brand of socialism:

land held by individuals of modest means > land held by Pfizer

But there is a little more to the Sanders-Kelo story. Representative Sanders was also among the largely Democratic minority that voted against an amendment in June 2005 offered to that year’s House Transportation Appropriations Bill that prohibited using any funds appropriated by the bill to enforce Kelo. You read that last run-on sentence correctly. An amendment was made to the Transportation Appropriations Bill in 2005 that said none of the tens of billions of dollars in the bill could be used for any purpose that would help enforce the Supreme Court’s decision in Kelo. If a member of Congress’ dislike of Kelo was, as Trump would say, huuuuuuuuuge, one way to stop it was to vote for the amendment, which is what a number of Democrats and a lot of Republicans did. But Sanders didn’t. He voted against the amendment meaning he voted to allow federal money to be used to enforce the judgment. For Sanders, this vote could have been more about separation of powers than his true views on Kelo. He did not make any floor speeches on the specific amendment so who knows what he was thinking at the time, but perhaps it was something like this:

separation of powers > using Congressional authority to defund Court’s authority

If that’s what Sanders was thinking, then I say good for him. What all of his other statements and votes on eminent domain seem to indicate is that while his pro-government values push him to look favorably on takings, he’s got result-oriented sunglasses on that impact his ultimate decision.

Last up, Hillary who, like Trump, has previously used eminent domain. What will she say on the topic? Tune in soon to find out!

https://lawprofessors.typepad.com/property/2016/04/feeling-the-bern-for-eminent-domain.html

Takings | Permalink

Comments

These posts re: candidates & eminent domain are great. Thanks for these quick, fun, informative reads!

Posted by: Andrea | Apr 9, 2016 4:49:39 AM

Post a comment