It hasn’t gotten much media attention, but last week, Texas voters overwhelmingly approved Amendment 11, an eminent domain reform measure that purports to ban “economic development” takings of the kind the Supreme Court upheld in Kelo v. City of New London. Texas badly needs stronger protection for property rights, since it has a long history of eminent domain abuse, including recent examples documented by the Institute for Justice (the libertarian public interest firm that represented the property owners in Kelo) in this report.
Unfortunately, the new Texas law is one of a long series of eminent domain reforms that fall short of actually forbidding the kinds of abuses they supposedly target. The amendment does forbid the taking of property for “the primary purpose of economic development or enhancement of tax revenues.” , But it continues to permit condemnations in areas with “urban blight.” And, as I document in this article (pg. 2124), Texas is one of many states where the definition of “blight” is so broad as to include virtually any property that the government might want to condemn. Indeed, Texas’ definition counts as “blighted” any area that, due to a wide range of possible causes, creates an “economic or social liability to the municipality” where it is located. This includes any area that creates an “economic . . . liability” because of insufficient development. Furthermore, the new Amendment still allows the power of eminent domain to be wielded by private organizations if they are “granted the power of eminent domain under [state] law.”
Amendment 11 is a small improvement over Texas’ previous almost completely toothless post-Kelo reform law (which I discussed in this article, pp. 2124, 2135–37). The main positive change is that “blight” now has to be shown on a property by property basis. Previously, local governments could simply declare an entire area blighted and then condemn any property within it, even if there was nothing wrong with that particular tract. However, the impact of this improvement is likely to be minor, at best, given the ease of proving the existence of proving “blight” under Texas’ definition of the term. Amendment 11 also closes the previous law’s loophole allowing takings for “community development.” However, the broad blight exemption undercuts this improvement as well. “Community development” takings can easily be couched as “blight” takings.
Why did Amendment 11 turn out to be so ineffective? One possible explanation is that, under the Texas Constitution, a proposed amendment has to get the approval of two thirds of the state legislature before being submitted to a popular referendum. In my recent article on post–Kelo reform, I found that eminent domain laws that go through the state legislature are far less likely to impose meaningful constraints on condemnation than those that are enacted by an initiative process in which citizen groups can place propositions on the ballot directly. State legislators have strong incentives to water down eminent domain reforms so that takings that benefit influential interest groups can continue. And widespread political ignorance makes it difficult for voters to tell the difference between laws that actually ban economic development takings and those that merely pretend to do so, while allowing them to continue under a different name.
Artemus says:
Pfizer has decided not to build the plant that was supposed to help out New London enough to justify taking away people’s private property to give to the drug company.
See Pfizer abandons site of infamous Kelo eminent domain taking
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November 10, 2009, 10:05 pmPersonFromPorlock says:
That’s not really very strongly put: what the legislators are doing is deliberately writing laws to allow them or their associates to practice graft.
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November 11, 2009, 7:33 amFloridan says:
Shorter Somin: Democracy doesn’t work.
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November 11, 2009, 9:34 amED Maven says:
A correction, Artemus. Pfizer did build its plant — a reasearch lab, across the river Thames from the Fort Trumbull redevelopment site in New London. Now Pfizer has announced that it is closing that plant and transferring its operations to its existing plant in Groton. Why? It’s a consolidation following Pfizer’s takeover of Wyeth pharmaceuticals.
But Pfizer’s plant is not within the infamous Fort Trumbull redevelopment project where Suzette Kelo’s house stood. Still, since catering to the upscale Pfizer employees was the raison d’etre for the redevelopment project, this development puts the kabosh on any hopes of any such redevelopment in the foreseeable future.
$180 million in state and city funds down the tubes for nothing.
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November 11, 2009, 10:22 amcubanbob says:
The only way out is to eliminate blight as a cause for eminent domain along with any and all taxation of the part of the forced upon seller on the gain on their property. Property in blighted areas is rarely worth much so the need for eminent domain is questionable. In addition most of those properties are usually delinquent in their property taxes so they could be seized and sold to pay the delinquent taxes on the court house steps. That the buyer may well be a government that would have seized the property under the current rules is irrelevant. No one is arguing against the forcible sale of property to collect delinquent taxes as long as the seizure is completely within the rules and not rigged to effect an eminent domain seizure.
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November 11, 2009, 4:27 pmJohnKT says:
Thank you very much for this critique. There was so little publicity on all the Amendments this election that it was impossible to know what one was voting for.
The best explanation was that of the League of Women Voters. It explained Prop 11, but not enough for voters to understand the sweep of “blighted areas.”
Sigh. So we voted for a barkless watchdog, hopefully better than nothing.
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November 11, 2009, 4:33 pmJohnny Bravo says:
In the Texas case of Prop. 11, State Senator Robert Duncan, chair of the powerful State Affairs committee that oversees such legislation in the upper chamber, worked closely with condemning authorities such as the municipal govt and port authority lobbies to severely weaken what had initially been a very strong bill sponsored by Rep. Frank Corte and passed unanimously by the Texas House. If not for Sen. Duncan of Lubbock, the citizens of Texas would have very likely received much more substantive reform.
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November 12, 2009, 1:12 amJohnKT says:
Thanks, Johnny Bravo, for more background. State Sen. Robert Duncan of Lubbock, eh?
Can you point me to more info on the State Affairs Committee?
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November 12, 2009, 7:43 amJohnny Bravo says:
Unfortunately, the State of Texas offers very little information about the committee itself on the web. But I can show you a document from the conference committee where two of the Senate members refused to sign off on HJR14/Prop.11. They refused to sign not because Prop 11 wasn’t strong enough, but because they thought Prop 11 was too hard on the condemning authorities and took too much of their power to condemn for private development. See HJR14 Signed Committee Report.
In case you can’t view the document, the two non-signers are Sen. John Whitmire (the dean of the Senate), and Sen. Van de Putte. Sen. Whitmire also threatened to filibuster the initial 2005 legislative attempt at eminent domain reform in the days just after the Kelo decision.
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November 12, 2009, 8:37 amWinning on appeal isn’t everything: Massey Coal and Kelo disappoint the winners says:
[...] That Supreme Court decision became a symbol for property-rights advocates, lending its name to an anti-Kelo property-rights backlash at the state level (such as one of the constitutional amendments Texas passed earlier this month, which was discussed this week ...). [...]