Amash bill: make feds pay when they take border land

The Eminent Domain Just Compensation Act, introduced by Rep. Justin Amash (R-Mich.), would require the feds to pay at the time of taking, rather than long afterward, when taking land by eminent domain for the proposed border wall. “It is unjust for the government to seize someone’s property with a lowball offer and then put the burden on them to fight for what they’re still owed,” Rep. Amash said in a statement. “My bill will stop this practice by requiring that a property’s fair value be finalized before DHS takes ownership.” While the bill applies only to the Homeland Security Department, its principles could presumably be generalized through further legislation. [David Bier, Cato] Related: Ilya Somin, and earlier here and here.


  • This is important. We do not really want gangster government. Takings for anything should pay fair market value. This same principle applies to civil asset forfeiture. In Chicago, if they tow your car for unpaid tickets, when they then sell your car if you can’t pay, they don’t give you the difference between the sale price and the tickets owed–that is theft. If the Coast Guard finds a small amount of drugs on your boat, they can seize the boat. All of these are violations of the constitution.

    • “Takings for anything should pay fair market value.”

      The problem is defining fair market value.

      Personally, I would define “fair market value” as whatever the current owner would be willing to voluntarily (genuinely voluntarily, which pretty much eliminates eminent domain) sell for.

      If the seller isn’t willing to sell at any price (effectively setting the price at $infinity), or sets the price at 30 times what the government thinks the property is worth, tough, you go home empty handed.

      • R. A. Heinlein [IIRC] had a proposal to deal with this: the property would be taxed at the value assigned to it by the owner. OTOH, if the owner lowballed the value to avoid this, the obvious response to this gambit would be to force him to sell at that value.

  • I am not sure I get this…article implies that under federal takings statute, the owner cannot accept the offered money as an advance payment, and then litigate value of the land in court. Is that so?

    In NY, the problem of the “lowball offer” has generally been addressed by making the government (e.g., a town condemning a strip of land for highway use) responsible for both the ultimate value of the land as determined by the court after trial (minus advance payment) AND the land owner’s attorney’s fees. That is a big incentive for the government to make a fair offer.

    • “Just” is also a part of the equation. Where the taking is a home, “just” compensation may also entail additional payments due to the situation of the homeowner.

    • Attorneys fees can be recoverable, but it is not the normal prevailing party analysis. The eminent domain provision in EAJA defines “prevailing party” as follows:
      [A] “prevailing party”, in the case of eminent domain proceedings, means a party who obtains a final judgment (other than by settlement), exclusive of interest, the amount of which is at least as close to the highest valuation of the property involved that is attested to at trial on behalf of the property owner as it is to the highest valuation of the property involved that is attested to at trial on behalf of the Government[.]
      28 U.S.C. § 2412(d)(2)(H).

      The gov. can be millions too low, and still not owe you attorneys fees.

  • How about when the Government does something to artificially lower the value of the property? Several years ago the city where my Sister lives built a Baseball stadium and got a minor league team to play there. The City thought that they could attract a developer to build upscale housing in the area around the stadium, boosting their tax base, so they declared the area blighted, lowering the property values. Nothing came of it because they couldn’t attract a developer, but, they never dropped the blighted status. Funny how the reduced property value comes into play everywhere except for the property taxes.