Commissioners’ Statements and Rebuttals 23While the Commission as a whole did not make any recommendations as a result of this briefing, asChairman, I would urge those policy-makers who review this report to act on the followingrecommendations made by some of our panelists, which I adopt as part of my Statement:Chairman’s Recommendations(1) Providing more procedural protections or compensation to residents than to commercial propertyowners;(2) Mandating minimum payments to tenants, who now receive no compensation when rental housing iscondemned and they are forced to move;(3) Amending the Fair Housing Act to clarify that it applies to condemnation of residences withoutregard to intent;(4) Be open and transparent and guarantee the full participation of any affected communities;(5) Provide fair compensation covering replacement costs for the takings, not just the appraisal value, sothat those displaced are not worse off; and(6) That there be an unbiased, empirical study using rigorous social science standards, examining thecurrent impact on communities of color of the use of the eminent domain power by local governments.(7) The U.S. Department of Justice’s Civil Rights Division should establish a task force to examine theapplication and subsequent implications of eminent domain laws across the country. The task forceshould focus on creating a standard formula used to determine just compensation, taking intoconsideration the implications of eminent domain on migration patterns and the economic impact ofeminent domain use on the re-developed areas. The task force should consider the feasibility ofalternatives such as, but not limited to (1) providing more procedural protections or compensation toresidents than commercial property owners, (2) mandating minimum payments to tenants who nowreceive no compensation when rental housing is condemned and they are forced to move, and (3)amending the Fair Housing Act to clarify that it applies to condemnation of residences without regard tointent.
24 The Civil Rights Implications of <strong>Eminent</strong> <strong>Domain</strong> AbuseThe Civil Rights Implications of <strong>Eminent</strong> <strong>Domain</strong> AbuseStatement of Vice ChairAbigail ThernstromIs the use or abuse of eminent domain a proper subject for the U.S. Commission on Civil Rights toaddress?A traditional view of civil rights addresses abridgments of one’s rights based on color, race, religion,sex, age, disability, or national origin, or in the administration of justice.But, as one panelist succinctly put it:[P]roperty and the ownership of it were actually at the heart of the conception of civil rights that underlaythe enactment of the Fourteenth Amendment. It was central to the rights that the framers of that amendmenthoped to guarantee to African Americans and to other minorities. 1Yet, with considerable justification, some scholars refer to property rights as the poor step child of civilrights because they are so easily abridged, even violated, often seemingly arbitrarily, by our owngovernment.Using eminent domain to seize private property from one owner and transfer it to another for “economicdevelopment” is fundamentally different from, and more constitutionally suspect than, declaringeminent domain for a truly “public use” such as building roads, schools, or other infrastructure. The verydefinition of “public use” has become ambiguous and controversial.As was discussed at our briefing, it is a fact that often in our past eminent domain has been deliberatelyused in a racially discriminatory manner. However, in our more recent past that dynamic has shifted.Today eminent domain is not motivated by racial animus but by the profit motive or, as some woulddescribe it, greed. As it happens, the property owners most likely to fail in fighting off eminentdomain—and against whom wealthy developers are most likely to prevail—are the politically andeconomically powerless, a large proportion of whom happen to be minorities. To argue today thateminent domain is racially discriminatory is to invite a debate about disparate impact.Our report describes one perspective on disparate impact and eminent domain:Commissioner Achtenberg asked Professor Byrne whether recent data and statistics on eminent domain useare sufficient for alleging that it disparately affects minorities and other disempowered communities.Professor Byrne agreed with Commissioner Achtenberg that policy makers lack empirical studies meetingrigorous social science standards that examine the recent use of eminent domain or determine its incidenceand who it affects. He criticized a study of “victims” of eminent domain abuse that merely examines thepopulation characteristics of the Census tracts in which eminent domain was used. That, he said, “doesn'ttell … very much.” Across the political spectrum, all agree that we need research to gain a betterunderstanding of what occurs. 21 Panelist Professor Ilya Somin at transcript pp. 9-10.2 Briefing <strong>Report</strong> at page 23.
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