Eminent Domain

Eminent domain is the power of a government to take private property, with or without the owner's consent, for a public purpose. The Fifth Amendment does not grant the power but limits it, saying private property shall not be taken for public use without just compensation. The Supreme Court applied that rule to the states in 1897 through the Fourteenth Amendment. Federal, state, and local governments, and some utilities and pipeline companies authorized by law, use it to build roads, dams, schools, military bases, power lines, and other projects.

Owners are entitled to fair market value, usually set by appraisals and, if they disagree, by a court or jury. The Interstate Highway System and urban renewal programs of the 1950s and 1960s took homes and businesses from hundreds of thousands of families, often in poor and Black neighborhoods. In Kelo v. City of New London, decided June 23, 2005, the Supreme Court ruled 5 to 4 that a city could take homes for a private economic development project because it served a public purpose. The backlash led more than 40 states to tighten their laws.

The Court has also said that regulations that go too far can count as takings, and in recent years it has strengthened owners' rights, letting them sue in federal court directly in 2019, treating a union access rule as a taking in 2021, and ruling in 2023 that a county could not keep the extra equity from a home seized for unpaid taxes. Disputes continue over land taken for the border wall, pipelines, and transmission lines. Supporters say the power is essential for public works, while critics say compensation often falls short and burdens fall on those with the least political power.