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Private Power and Eminent Domain

Private Power and Eminent Domain

Update: 2021-12-13


The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?". This panel discussed "Private Power and Eminent Domain."
Since the Founding, the extent to which the public power of eminent domain may be used by, or for the benefit of, private parties, has been a subject of intense debate. Time and time again, the U.S. Supreme Court has considered cases testing the Fifth Amendment’s guarantee that "private property [shall not] be taken for public use, without just compensation." U.S. Const., amend. V. Over 15 years ago, in the landmark case of Kelo v. New London, the Court upheld the exercise of eminent domain to transfer private property from private individuals to other private entities. The decision – controversial from the outset – prompted deeper questions about the extent to which the Constitution allows for eminent domain for "public purposes" even where the action advances the economic interests of private parties over others. But how lasting is this precedent? In a recent dissent from the denial of certiorari in Eychaner v. Chicago, three justices voted to revisit Kelo, two of them expressly calling to overrule it. Since Kelo, the U.S. Supreme Court has continued to review eminent domain and other cases, raising significant property rights concerns – often involving complex questions at the intersection of private and public power.
Most recently, in the 2020-2021 term, the U.S. Supreme Court heard three cases dealing with the intersection of private and public power in the eminent domain context:

Cedar Point Nursery v. Hassid, where the Court held that a state regulation allowing union organizers to enter private property constituted a taking requiring just compensation;
PennEast Pipeline v. New Jersey, where the Court dealt with the legality of the Federal Energy Regulatory Commission’s (FERC) delegation of eminent domain powers to a private pipeline company; and
Pakdel v. San Francisco, where the Court continued to reduce procedural hurdles for inverse condemnation claims (expanding upon a prior decision just two years ago in Knick v. Township of Scott).

For this panel, a distinguished lineup of speakers will discuss the intersection between public and private power in the eminent domain context. The panel will focus on eminent domain’s history, the implications of originalism for understanding the extent and use of that power, recent Supreme Court rulings on these topics, and the likely subjects and issues for review in future cases, among other things. As part of this discussion, the panel will illuminate the constitutional, legal, economic, and philosophic principles and considerations that help to inform perspectives on this important topic of public versus private power in the realm of property rights.

Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP; Former Solicitor General, U.S. Department of Justice
Prof. Roderick Hills, William T. Comfort, III Professor of Law, New York University School of Law
Mr. Robert J. McNamara, Senior Attorney, Institute for Justice
Mr. Joshua Thompson, Director of Legal Operations, Pacific Legal Foundation
Moderator: Hon. Jennifer Walker Elrod, U.S. Court of Appeals, Fifth Circuit
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Private Power and Eminent Domain

Private Power and Eminent Domain

The Federalist Society