Should Private Property Owners Be Fairly Compensated If Homeland Security Takes Their Property? (H.R. 440)

What is H.R. 440?

(Updated July 18, 2020)

This bill — the Eminent Domain Just Compensation Act (EDJCA) — would ensure that private property owners are justly compensated if the Dept. of Homeland Security (DHS) takes their property. To do this, it’d require that court proceedings settling compensation be completed prior to the government taking possession of the property.

Argument in favor

The use of eminent domain to take citizens’ property for government purposes hurts landowners and private property rights. While this bill won’t end that practice, it’d at least ensure that landowners are fairly compensated for their property in a timely manner.

Argument opposed

The federal government is within its rights to use eminent domain to take private land for government use, as long as the property owners are compensated. By hamstringing the use of eminent domain, this bill would make it harder for the government to meet its responsibilities.

Impact

Southern states; property owners in southern states; southern border wall; eminent domain; courts; and DHS.

Cost of H.R. 440

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Justin Amash (R-MI) introduced this bill to ensure that private property owners are fairly compensated if the federal government takes their land for border security or enforcement activities:

“It is unjust for the government to seize someone’s property with a lowball offer and then put the burden on them to fight for what they’re still owed. My bill will stop this practice by requiring that a property’s fair value be finalized before DHS takes ownership.”

Rep. Amash doesn’t necessarily oppose a southern border wall; however, he wants to ensure that the construction of such a wall takes private property rights and environmental concerns into account. In an interview with the Ionia Sentinel-Standard in January 2019, he said:

“I don’t have an inherent objection to a border wall. It needs to be done thoughtfully. It should take into consideration private property at the border and environmental concerns. If those things can be taken into account, I’m OK with it.”

Efrén C. Olivares, racial and economic justice program director at the Texas Civil Rights project, notes that currently, landowners who decide to fight the federal government in court are often forced to give up access to their land for the duration of the suit until a final payout is determined. This bill would remedy this by requiring that court proceedings settling compensation be completed before the government can take possession of the land.

President Trump has declared his intention to invoke the “military version of eminent domain” to take property along the southern border without due process or just compensation. His plan is to declare a national emergency, call the border a national security matter, and take the land that’s needed to build the border wall. Military department secretaries are allowed to “acquire any interest in land” if “the acquisition is needed in the interest of national defense.” Trump has long supported the use of eminent domain to build his wall, saying in 2016, “You have to use eminent domain. If we had one person that wouldn’t sell us ... then we wouldn’t be able to build proper border security because we’d have that big opening.”

While the principle of eminent domain is broadly unpopular among many conservatives, who point to it an example of government overreach, they seem relatively comfortable with using eminent domain to get land for the border wall. Sen. Ted Cruz (R-TX) is one of the conservatives who’ve expressed support for the government using eminent domain to build the wall, saying, “Securing the border is a legitimate area for eminent domain where landowners would get reasonable and just compensation,” as the wall would fall under public use.

John Malcolm, vice president for the Institute for Constitutional Government at the Heritage Foundation, says that there’s no eminent domain problem as long as the president has the authority to use eminent domain. He adds: “The government could seize the land, but would have to pay ‘just compensation’ to the landowner.”

There are no cosponsors of this bill.

Of Note: The Fifth Amendment includes language that is often referred to as the “Takings Clause” — permits the federal government to take private property for public use, provided property owners receive “just compensation.” However, in some cases, the Dept. of Homeland Security (DHS) and other government agencies are using “quick take” condemnations to take possession of private property before just compensation has been determined. If the government’s preliminary payment is determined to be unfair, the property owner is left to fight for full compensation while also dealing with the immediate practical and financial consequences of losing their property without adequate.

The Cato Institute's David Bier criticized “quick take” at the southern border by DHS in 2017, writing:

“[U]nder the eminent domain statute, the federal government can seize property almost as soon as they file a condemnation proceeding—as soon as the legal authority for the taking is established—then they can haggle over just compensation later. It’s called “quick take.” Quick take eminent domain creates multiple perverse incentives for the government. 1) They can quickly take land, even when they don’t really need it, and 2) they have no real incentive to compromise or work with the land owner on compensation. The land owner’s bargaining power is significantly diminished. The federal government already possesses the property. This means that for years, people who are subject to a border wall taking go without just compensation. The government is supposed to compensate the landowner for this time by paying interest on the agreed amount. But in the real world, many people cannot survive for years being deprived of income that they might have from the land. According to an NPR analysis of 300 fence cases, the resolved cases took more than three years to resolve. In other cases, the process took seven, eight, or even 10 years. Some cases are still pending a decade on. Congress could rectify this injustice by requiring the federal government to work out just compensation before the wall is built or, better yet, before the land is taken. That would give the landowner a fair position to negotiate with the government and give the government a reason to respect their rights. That it would slow up a pointless waste of taxpayer dollars is just an added bonus.”

Because the federal government owns less than a third of the land on the southern border, President Trump’s desire to build a southern border wall has significant implications for private property concerns. States, Native American tribes, and private individuals contain over two-thirds of borderland property. During the Bush administration, the federal government sued property owners on the southern border for not “voluntarily” giving over their land rights without compensation. When that didn’t work, the government attempted to use eminent domain, but lawsuits imposed serious delays — including one of seven years in one case.

Media:

• Sponsoring Rep. Justin Amash (R-MI) Press Release
  
• Cato Institute
  
• Reason
  
• Reason (Context)