The Eminent Donald Trump Has A Weakness

This op-ed was originally published at Forbes on February 9, 2016.

A poll released by The Des Moines Register on the eve of the Iowa caucuses found that Donald Trump’s support of eminent domain bothered 60% of Republican caucus-goers. It is quite likely the focus on the issue is why the real estate mogul’s failed to win.

Chances are attacks on Trump’s support of eminent domain in a general election would be just as effective, especially if the Democratic nominee, whether it is Hillary Clinton or Bernie Sanders, leans on the issue. One reason why it would be effective is because eminent domain disproportionately impacts poor and minority communities.

Eminent domain is the tool by which the government can take property for a public use – such as a road, school or government building. Well, at least that is what James Madison had in mind when he submitted his proposed Bill of Rights to the First Congress in June 1789. The language was adopted as part of the Fifth Amendment, the last clause of which states: “[N]or shall private property be taken for public use, without just compensation.”

Sadly, in 2005, the Supreme Court gutted this key protection for the right to private property – the very basis of individual liberty and economic freedom – by ruling that the lots owned by Susette Kelo and her neighbors in the Fort Trumbull section of New London, Connecticut could be taken through eminent domain to grow the local tax base. The decision ostensibly expanded the term “public use” to include economic development purposes, which allowed local governments to use eminent domain to seize private property from one person and transfer it to another private party.

Justice Sandra Day O’Connor blistered the majority who sided with the city over the rights of property owners. “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms,” she wrote. “The Founders cannot have intended this perverse result.”

In a separate dissent, Justice Clarence Thomas echoed O’Conner but took it a step further by noting the likelihood that the decision would negatively impact communities with little influence in the political process.

“Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities,” Thomas explained. “Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”

The impact of the decision was swiftly felt in communities across the nation. A June 2006 report released by the Institute for Justice, which has worked extensively in this area, noted that “[s]ince the decision was handed down, local governments threatened eminent domain or condemned at least 5,783 homes, businesses, churches, and other properties so that they could be transferred to another private party.” Prior to the Supreme Court’s 2005 ruling, there were nearly 10,300 threats between 1998 and 2002. Many states moved quickly to address the impact of the ruling.

Trump, however, praised the decision. “I happen to agree with it 100 percent, not that I would want to use it,” Trump said in a July 2005 appearance on Fox News. “But the fact is, if you have a person living in an area that’s not even necessarily a good area, and government, whether it’s local or whatever, government wants to build a tremendous economic development, where a lot of people are going to be put to work and make area that’s not good into a good area, and move the person that’s living there into a better place — now, I know it might not be their choice — but move the person to a better place and yet create thousands upon thousands of jobs and beautification and lots of other things, I think it happens to be good.”

Of course, Trump did try to use eminent domain to take the property of someone who was unwilling to sell to him, a point brought up by Jeb Bush during Saturday’s Republican presidential debate in Manchester, New Hampshire.

In the 1990s, Vera Coking, an elderly widow, would not sell her Atlantic City home to Trump so he could build a limousine parking lot for his casino, so he turned to the state government to take the property for him. Thankfully, he lost in court.

But what of the impact of eminent domain on poor and minority communities? There is already a history on this particular aspect of the issue. In 1954, the Supreme Court displaced more than 5,000 residents, nearly all of whom were African-Americans, by upholding the taking of properties through eminent domain in southwest Washington, DC for economic development purposes.

In more recent context, it turns out that Justice Thomas was correct: Eminent domain disproportionately impacts poor and minority communities. A 2007 report from the Institute for Justice noted of 184 areas in which eminent domain was used for private development, 58% of residents were minorities, 64% had a high school diploma or less, and the median annual income of these areas was under $19,000.

“Of course, these data do not show or even imply that governments and developers deliberately discriminate by targeting particular areas with eminent domain because there are poorer, minority or less-educated residents,” the researchers, Dick Carpenter and John Ross, wrote in the report. “Yet, these results reveal such communities are disproportionately affected nonetheless, and these are typically communities less able to exert significant political influence in defense of their homes and neighborhoods.”

For Trump, now a candidate for the presidency with a shot of winning a major party’s nomination, there are real political implications for his support of eminent domain. Democrats are watching the Republican primary, and they are taking notes on which attacks stick against every candidate, including Trump.

Clinton’s views on eminent domain are not very clear. But, ironically, the Democratic socialist, Sanders, would have a better record on eminent domain than Trump. In 2005, for example, then in the House of Representatives, Sanders voted for the Private Property Rights Protection Act, legislation that was introduced in response to the Supreme Court’s decision.

The attacks on Trump for his support of eminent domain have stuck. His response is nothing short of disingenuous and insincere. With polling on the issue against him, should Trump win the Republican nomination, eminent domain would undoubtedly play a role in a general election campaign, in which the Democratic nominee could use the issue to put poor and minority voters further out of Republicans’ reach and deny them the White House.