Privatizing Eminent Domain: The Delegation of a Very Public Power to Private, Non-Profit and Charitable Corporations


In an age of privatization of many governmental functions such as health care, prison management, and warfare, this Article poses the question as to whether eminent domain should be among them. Unlike other privatized functions, eminent domain is a traditionally governmental and highly coercive power, akin to the government’s power to tax, to arrest individuals, and to license. It is, therefore, a very public power.

In particular, the delegation of this very public power to private, non-profit and charitable corporations has escaped the scrutiny that for-profit private actors have attracted in the wake of the U.S. Supreme Court’s decision in Kelo. Though delegated the very public power of eminent domain, these private, non-profit actors may only be accountable to their private boards of directors instead of to the general electorate.

This Article asserts that the largely procedural due process underpinnings of the Private Non-Delegation Doctrine (PNDD), a doctrine that has enjoyed renewed vigor in the state courts, provides an excellent means to assess the delegation of the takings power to private, non-profit corporations. The paper introduces two PNDD tests and applies these tests to two case studies in which eminent domain power has been delegated to private non-profits. Finally, in order to address the procedural due process concerns stressed by the PNDD and the two judicial tests, this Article proposes seven legislative solutions, including the use of Social Capital Impact Assessments, for state legislatures that have either delegated the takings power to private, non-profits, or that are contemplating these delegations.


Business Organizations Law | Constitutional Law | Environmental Law | Land Use Law | Property Law and Real Estate

Date of this Version

September 2006