California Eminent Domain Report

Once again, I sit at my desk wondering how all of this happened.  For more than a decade, I worked as an eminent domain attorney in utter obscurity; I'm not even sure my family knew what eminent domain was.  But then the City of New London, Connecticut tried to take Ms. Kelo's little pink house, and everything changed.  Since the Supreme Court's 2005 Kelo decision, eminent domain has become a mainstream topic, coming up in late night talk show skits, and now, taking center stage in the Republican presidential race.

At last Saturday's debate, the use of eminent domain turned into a firestorm of accusations and confrontations.  Trump defended his stance on eminent domain:

So many people have hit me with commercials and other things about eminent domain. Eminent domain is an absolute necessity for a country, for our country.  Without it, you wouldn't have roads. You wouldn't have hospitals. You wouldn't have anything. You wouldn't have schools. You wouldn't have bridges. You need eminent domain.

Jeb Bush responded by bringing up a situation in which Trump wanted to condemn an elderly woman's house for one of his projects (an effort that ultimately failed).  Bush explained:  "That is not public purpose. That is downright wrong."

In the debate's aftermath, Trump accused Bush of being a hypocrite, citing the Bush family's efforts to use eminent domain to buy land for a baseball stadium.

Aside from the philosophical debate over eminent domain, the candidates also wrangled over one specific project:  the Keystone XL Pipeline.  According to a Huffington Post article, "In the Republican primary, the Keystone pipeline is second to the Lord Christ himself in unquestioned acceptance."  But as Trump explained, even though most Republican candidates express support for the Keystone pipeline, while at the same time condemning the use of eminent domain for "private" projects: "The Keystone pipeline, without eminent domain, would not go 10 feet."

And when Bush tried to explain that Keystone was different, because it was a public project, not a "private" use of eminent domain, Trump attacked again, explaining that Keystone is being promoted by a private company, TransCanada.  (This may lead down the path of a technical debate, over whether a private company should be able to use eminent domain for an arguably public purpose, such as a pipeline.  And if it does so, is the project "public" or "private"?  I'll leave that discussion for another day.)

You can watch the eminent domain section of the debate here.  While this will not likely become the main issue that separates the candidates between now and November, I expect we have not heard the last of this debate.