Wednesday, April 13, 2016

The Mystery of Hillary and Eminent Domain

As previously mentioned, Hillary (or at least the Clinton family) is one of two presidential candidates that have actually used eminent domain. In 2001, the Clinton Presidential Library used eminent domain to take Eugene Pfeifer III’s land in Little Rock, Arkansas. Pfeifer objected to the taking, claiming that a presidential library was not a public use because it was not a public park, but the Arkansas Supreme Court unanimously disagreed and upheld the seizure of land. (If Wikipedia is to be believed, the Pfeifer-Clinton dispute didn’t end in 2001, so I’m guessing he’s not supporting Hillary this election cycle.)

So given that eminent domain has been used by the Clintons, one would assume the Democratic frontrunner is, at a minimum, not opposed to the Fifth Amendment. Right?

Well, to be honest, it’s hard to find out what Hillary’s stance is on eminent domain. Unlike the Republicans, this has not been an issue brought up in Democratic debates or TV commercials. Even back when there were three Dems in the race—remember when Martin O’Malley was in there?—the Fifth Amendment didn’t come up.

There a shocking number of conspiracy theories on the Internet about Clinton giving the Chinese government eminent domain rights to secure American debt, but those are quite obviously fictitious (not to mention economically impractical and constitutionally invalid).

But what does Hillary really think about eminent domain?

That’s the $64,000 question.

As best as my research shows, Clinton has said nothingzilch, nada, zippo—about eminent domain this election cycle or last Presidential election cycle or during her Senate career. In fact, I can’t even find a vote she’s taken on the topic. Remember how we saw that Sanders voted no in 2007 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”? If you are wondering how Clinton voted because she was in the Senate in 2007, too, the answer is simple: she didn’t vote. (Note: Neither did Obama or McCain. It was December 2007 so everyone was busy running for President.)

So with no votes, no floor speeches, and no crazy political advertisements, the best I can do is to speculate about her position on eminent domain. Here goes nothing:

I speculate that Clinton is not opposed to the use of eminent domain, or even the public use definition from Kelo, but does not view that as a winning issue to campaign on.

This is my hypothesis because of other positions Clinton has taken. Hillary is now against the Keystone pipeline, but c’mon, everyone knows she’s not that against Keystone. The Keystone pipeline unquestionably requires using eminent domain.

Hillary is generally pro-government. Pro-government = government power = generally thumbs up on eminent domain.

But if Clinton is pro-eminent domain (which, again, is just my hypothesis), why not add that to her “America is already great, let’s use government to keep it that way” platform? If she does, then that gives the Cruz’ of the world and the Sanders’ of the world the opportunity to make the following syllogism:

Eminent domain kicks little old ladies out of their houses to build casinos.
Trump likes eminent domain.
Trump likes to kick little old ladies out of their houses to build casinos.
Clinton likes eminent domain. Clinton likes to kick little old ladies out of their houses to build casinos.
Clinton = Trump.

Yes, anyone supporting Clinton or Trump will immediately argue that the syllogism is invalid, but campaigns can be impervious to truth, so no need to tout an issue that is really a non-issue for most Democrats and can be used by opponents to cut unpleasant campaign ads.

So there you have it. For an individual who has been in the public spotlight for a relatively long period of time, there is shockingly little about Hillary’s views on eminent domain. At least shockingly little public information about her views on the topic—perhaps all of her private speeches to Goldman Sachs et al were on the topic of the Fifth Amendment.

https://lawprofessors.typepad.com/property/2016/04/the-mystery-of-hillary-and-eminent-domain.html

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