FINAL_FY14_Eminent-Domain-Report

Commissioners’ Statements and Rebuttals 31displacing one million people, two-thirds of whom were African American. 14 Eminent domain usedisplaced African Americans five times more often than their representation in the nation’s population. 15Fortunately, aggressively racial motivations for takings appear less common now than they were a fewdecades ago. But it remains at best unclear whether redevelopment advocates have fully acknowledgedor grappled with some of the more unsavory facets of the intellectual history of “blight” and of Bermanv. Parker, which remain integral parts of contemporary takings law. Indeed, the latter was re-affirmedin, and largely drove the outcome of, the more recent Kelo v. New London. 16The best evidence available to the Commission also indicates that eminent domain takings stilldisproportionately affect minority neighborhoods. 17 The accounts of eminent domain use in Birminghamcollected by David Beito and discussed in a forthcoming Alabama SAC report further suggest cause forconcern. This appears to be so for several reasons. First, racial and ethnic minorities are vulnerablebecause their properties tend to be less valuable. Condemning authorities can pay less compensation fortaking them and realize greater profits if the properties appreciate in value. Second, minority residentssometimes lack the political influence necessary to block takings, at least in part because of pastdiscrimination. They also are less likely to be in a position to challenge takings in court. 1814 See Mindy Thompson Fullilove, EMINENT DOMAIN AND AFRICAN AMERICANS: WHAT IS THE PRICE OF THECOMMONS? (2007).15 Id. at 2.16 545 U.S. 469 (2005).17 See, e.g., The Institute for Justice, Victimizing the Vulnerable (2007) (finding that properties targeted for takings aredisproportionately likely to be found in low-income or disproportionately minority neighborhoods). This study looks only atthe census tract where takings took place and not at data on the demographics of the owners themselves. Although I wouldwelcome research that could better pinpoint the race and income level of the targeted property owners themselves, alas, to myknowledge, it does not yet exist.In the copy of his Draft Statement provided to me, Commissioner Kladney states that “Despite my requests during thebriefing for data about recent instances of eminent domain abuse that fall within our jurisdiction, none of the witnessespointed to cases after 1973. Only after they revised their statements for the record were any of the witnesses able to point torelevant cases after 1973.” Commissioner Kladney’s actual question to the witnesses was: “Have any of these types of casesshown a violation of civil rights or property rights, like Kelo and Hawaiian Housing Authority and things like that, or havethey withstood these court tests, constitutionality?” Transcript at 77-78. Ilya Somin, the only witness who responded,described a series of cases involving takings dubiously constitutional even under what Somin believes to be the overlypermissive Kelo standard of review. He appears not to have understood Commissioner Kladney to be asking for a list of casesinvolving allegations of intentional racial discrimination, and I interpret the language that appears in the official transcript inthe same way.I am also somewhat confused about the claim that witnesses found cases after 1973 only after the briefing was over, as nonerevised or resubmitted new statements. I would note also that the Institute for Justice website cites plenty of cases of post-1973 litigation involving eminent domain abuse.18 A tangential but nonetheless important point: Professor Byrne said that that in his view eminent domain abuse hasimproved in recent years in part due to lessened federal involvement and increased local control over housing and urbanpolicy. Report at 10. Often, my Democratic colleagues on the Commission have assumed that increasing federal control overa given area of public policy will automatically redound to the benefit of historically disadvantaged groups. Equally often, Ihave pushed back against such claims. See, e.g., U.S. Commission on Civil Rights, Peer to Peer Violence and Bullying:Measuring the Federal Response (2011), Statement of Gail Heriot at 196: “What disturbs me is the lack of real discussion in[my colleagues’] Statements. Nowhere is an effort made to explain how federal jurisdiction over these things is making theissue better. The point is taken for granted. The Statements contain no recognition of the fact that entrusting an issue—(cont'd)