Can Eminent Domain by used to Protect Jobs?

           "Private property shall not be taken or damaged for public use
           without just compensation ...." IL. Constitution, Art. 1 §15

On his first day in office, President Biden revoked the permit to finish building the 1700 mile Keystone Pipeline to carry oil from Alberta, Canada to the Texas Gulf Coast. The Laborers’ International Union of North America condemned Mr. Biden's action. The union says Mr. Biden's Executive Order will destroy 1,000 existing and 10,000 new construction jobs. AFL-CIO President Trumka agrees.


Sen. Joe Manchin (D. WV) has asked Mr. Biden to reconsider, and has set out facts to show that pipelines “continue to be the safest mode to transport our oil and natural gas resources, and they support thousands of high-paying, American union jobs.″ If Manchin is correct and the pipeline is the environ-mentally safest way to move oil and gas, it cannot honestly be regulated out of existence in the name of safety concerns.


But what remedy is available to Keystone workers whose jobs have been "taken" or destroyed by President Biden? How about Eminent Domain?

If the government takes your property for a public use. it has to pay you "just compensation." The Fifth Amendment to the U.S. Constitution states "nor shall property be taken for public use without just compensation."


If you own a house, and the government wants to build a new highway across your property, the government can take all or part of your property. This is known as the power of Eminent Domain. The government passes a law finding that it needs to take your property for a public purpose. But then, it must pay you the "fair cash market value" ("FCMV") for the whole, or for whatever portion of your property it takes. You have the right to have a jury trial to determine what the "just compensation" is for your loss.


And if the taking also diminishes the value of your property beyond the "just compensation" for the part actually taken, you are entitled to additional damages "to the remainder." 

Assume that your house and lot had a "FCMV" of $500K before the government takes of thirty feet of your lawn. Assume further that the "FCMV" of the parcel taken is $30K. Finally, assume that competent appraisers determine that the "FCMV" of your home and the remaining portion of your lot after the take is $400K. Therefore, besides being paid $30K for the portion of the land actually taken, you would be entitled to an additional $70K for "damages to the remainder."


And there are even times when a property owner may be entitled to damages when no part of his property has been taken. Assume you own a gas station. You have ingress/egress to an adjacent highway. You lose that access when the government makes it "limited access." Motorist to get to your station, now have to leave the highway 3 miles East of your station, and use winding back roads to get there. This reduces the "FCMV" of your property 75%. You are entitled to compensation.


From the above, it can be seen that the 5th Amendment affords the landowner whose real property has been taken/damaged broad protections.


But what if the property taken isn't "real estate?" The destruction of easements, leaseholds, or the taking/destruction of "personal property," including crops, franchise rights, patent rights, and trade secrets, all require the payment of "just compensation." 

But does a citizen whose job is destroyed by the President's Executive Order have a compensable property right in his employment?


In 1937, FDR's Labor Secretary, Frances Perkins, thought so when she said that striking "workers had a property right to their jobs."


In 1975, the California Supreme Court said that public employees, who have attained regular status, "have a property right to their jobs."


So, assume that the State of Illinois decides it "needs" the John Deere Administrative Center for a new executive office suite for Gov. J. B. Pritzker. Clearly John Deere would be entitled to just compensation for the taking of its lands and building. But what if Deere relocates to China, and 2000 of its employees permanently lose their employment? Would the employees be entitled to "just compensation" for the "taking" of their jobs for "public use?"


In 2005, Justice John Paul Stevens wrote in Kelo v. New London that "expropriation of private holdings as part of urban development is justified for the public purpose of increasing jobs and tax revenues."


I would suggest that when a President destroys thousands of jobs in an industry to "Save the Environment" and to create an unknown number of "High Paying Green Jobs," those "jobs"that are destroyed should be considered "property."


If Eminent Domain can be used for the "public purpose" of "increasing jobs" (as per Kelo), Eminent Domain should also be available to compensate workers when the government intentionally choses to their jobs.


If the government wants create a new group of workers, and destroy an older one, for the"benefit of the larger community," the benefiting community should compensate the workers who are being damaged. The purposes of Eminent Domain is to shift the burden of a public improvement from the person whose property is taken to the entire community for whose benefit the public improvement is allegedly being made.


If the Laborers’ Int'l Union, is worthy of its name, it should bring a "reverse" Eminent Domain class action on behalf of its members whose jobs are being destroyed. It should test whether under the Constitution, "just compensation" must be paid when the Government intentionally destroys those jobs for an alleged "public purpose," designed to benefit the entire community.


I find no precedents for such an action. But it's sure worth a try! There is nothing in the 5th Amendment that says "a man's job is not his property." 

First Published in the Moline Dispatch and Rock Island Argus on February 26, 2021

Copyright 2021

John Donald O'Shea  

"Chicken Little is alive and well, and in Washington D.C.

Who said fairy tales never come true? Remember the story of "Chicken Little?"

       "Once upon a time there was a little chicken. Everybody called him-- 

        'Chicken Little.' One day, while he was out walking, a bird flew over and
        it dropped an acorn that bopped 'Chicken Little' on his head. 'Chicken
        Little' looked up, and didn’t see anything. And when he didn't, he
        panicked and began yelling, “Help, help the sky is falling! The sky is
        falling! I have to tell the King!” And he went running down the road,
        looking for the King."

Chicken Little, it seems, is alive and well. In fact, it appears he has taken employment within the Biden Administration, and is now running the U.S. Department of Homeland Security. Here is the Department's version of "The sky is falling! The sky is falling!

        "Some ideologically-motivated extremists with objections to the exercise of
        governmental authority and presidential transition ... could continue to mobilize
        to incite or commit violence."

But wait, It's not only DHS that's gone bonkers! Our esteemed Governor, J. B. Pritzker (D) is dispatching 500 Illinois National Guardsmen to augment the 7000 National Guardsmen from sister states who are already in the District to insure that the Bogeyman (a/k/a former President Trump) and his minions (who haven't been seen or heard from since President Biden's Inauguration) don't rise out of the Washington Tidal Basin on a fogey night, and drag President Biden from the White House basement, and tow the Capitol building off to Texas with their pickups.

Now if only the Guardsmen can set up a few hundred machine guns in concrete pill boxes on the Capitol grounds, behind the concrete wall, "unscalable fence," and the guardhouses that have already been erected, our fearless Congressional representatives should be safe, from the hordes of "insurrectionists" wearing MAGA hats, their constituents, and time-wasting future elections.

For four years, the Democrats in Washington have been on a non-stop rant against President Trump's "despicable" southern Border Wall with President Biden leading the charge. That wall, designed to keep illegal aliens, drug dealers, and narco-terrorists out of the country, was an unnecessary "abomination." Ordinary Americans have been told they had to take their chances with drug dealers and murders who crossed out border illegally. The pleas of parents of murdered children were ignored in the halls of Congress. But now, the rule is different for Congress. Our esteemed Congressional representatives must protected with concrete walls, unscalable fences, and 7500 armed soldiers. 

But how can the same political hacks who supported the "defunding of police" all last summer as stores were being burned and looted, as people were being shot, and as neighborhoods were being declared "autonomous zones" by mobs of leftists, now demand extraordinary "police protection" by armed National Guardsmen? 

And why, at the same time as the Left demands a re-writing of the Second Amendment to take weapons from ordinary law-abiding Americans, are our elected representatives hunkered down en masse behind National Guardsman with "assault rifles?" 

Don't chose to misunderstand me. I don't in the least approve of a mob bursting into the halls of Congress and stealing or destroying the property of the American people — or causing death or bodily harm. They should be prosecuted. But what about the rioters — euphemistically described by the press as "mostly peaceful protesters" — who sacked Target Stores, burned down neighborhoods, and assaulted and shot people? Do they not deserve equal justice? 

The press labels the miscreants who desecrated the Capitol as "insurrectionists." So why aren't the miscreants who established "autonomous zones" in American cities and set up their own "governments" labeled "insurrections?" Why aren't the rioters who destroyed priceless American statues, and who burned and looted businesses labeled "rioters." If "the book" is to be thrown at the reprobates who trashed the Capitol, why is it not thrown at the reprobates who destroyed cities, businesses and homes? If the police and the FBI are going to "come down with both heels" on rioters at the Capitol, why aren't they coming down with both feet on rioters in the hinterlands? 

Unless there is "equal justice" for all, President Biden is going to have a devil of a time reuniting the country. You can't punish one group for insurrection and/or riot riot, and not the next.

Our First Amendment states, "Congress shall make no law respecting ...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The word "people" includes Republicans, Democrats and even Communists and Fascists. But the the Constitution no where guarantees anybody the right to engage in insurrection or riot, to harm or kill their neighbor, or to destroy public or private property. 

First Published in the Moline Dispatch and Rock Island Argus on February 7, 2021

Copyright 2021

John Donald O'Shea