Private Delegations and Eminent Domain

Abstract

Courts and scholars generally view delegations of legislative power as unconstitutional to the extent they are to self-interested parties and no government oversight exists. Yet, delegations of one important legislative power—the eminent domain power—to private parties are generally viewed as posing no constitutional problem even if the delegation is to a self-interested party and government oversight is lacking. In fact, delegations of the eminent domain power have become commonplace as states undertake large energy and transportation infrastructure projects involving pipeline development, carbon capture and storage, transmission lines for wind and solar power, and high-speed rail.

This Article is the first to explore why private delegations of the eminent domain power have received such different treatment from other private delegations of legislative power and to critically analyze these delegations under the Supreme Court’s modern due process, separation-of-powers, and takings jurisprudence. It ultimately concludes that these delegations generally should be viewed as presumptively invalid absent meaningful government oversight over the exercise of the power. These delegations implicate a host of social, environmental, and safety factors, and ultimately, hinge on the question of what is in the public interest. Oversight over exercises of the eminent domain power allows states to continue to utilize private delegations in planning and building new infrastructure projects, but also ensures that landowners’ and local communities’ voices are considered in the process and that these critical decisions are not being made based on private companies’ interests alone.

Keywords: eminent domain; takings; public use; Kelo; Fifth Amendment; delegation; private non-delegation doctrine; due process; energy takings