Condemning the decisions of the past: eminent domain and democratic accountability.

• Author: Serkin, Christopher
• Position: Fordham Urban Law Journal Symposium

Introduction I. Entrenchment by Another Name II. Eminent Domain in New York A. The Built Environment 1. Rejuvenating Times Square 2. Reclaiming the Waterfront B. Vested Rights 1. Reinventing Taxis 2. Rethinking Inlet Park C. Critical Assets 1. Selling Parking Meters 2. Moving Prisoners III. Evaluating Eminent Domain INTRODUCTION

Eminent domain represents a critical and contested point of intersection between government power and private property rights. As debates over eminent domain have leapt from the pages of academic articles (1) to legislatures (2) and even to popular culture, (3) the battle lines have largely crystallized. Most people now seem to agree that eminent domain, for better or worse, is primarily a tool for the government to use to assemble property and overcome holdouts. (4) In this Essay, I argue that an entirely different interest is also at stake. Eminent domain serves an important structural role in American democracy--ensuring that governments are not bound by the policy choices of their predecessors. (5) In this account, eminent domain is a tool for acquiring not just property, but also democratic legitimacy.

It is a core principle of democracy that one government is not allowed to make policy choices for future governments. (6) Democratic power requires that a representative government be responsive to the will of its own constituents, not the constituents of the past. For that reason, legislatures are not allowed to pass unrepealable legislation, and constitutions contain mechanisms for amendment. (7) Despite the prohibition on entrenchment, as it is usually called, governments have many tools at their disposal to propel their policy preferences into the future. (8) Among the most powerful but least theorized are those that rely on private rights. Long-term government contracts, physical developments, and property conveyances in many forms can lock in policy preferences beyond a single legislative lifecycle. (9) Faced with incorporeal and physical manifestations of past policies, eminent domain is an important tool for subsequent governments to de-entrench those preferences, buying back policy control from the past.

This is not just abstract political theory. Indeed, viewed through the lens of entrenchment, New York provides ready examples of eminent domain's role in changing policies adopted by previous governments. This Essay examines some of those examples, and also current policies that future governments might need eminent domain to undo. This Essay therefore highlights a seldom-explored role for eminent domain: preserving the ability of New York's elected representatives to respond to the will of the people.

1. ENTRENCHMENT BY ANOTHER NAME

   Eminent domain plays no obvious role in traditional debates about legislative entrenchment. Entrenchment, as typically conceived, refers to unrepealable legislation--that is, public laws that are binding into the future. (10) Eminent domain is irrelevant in that context. But entrenchment concerns should not be so narrowly construed. Indeed, the concerns animating prohibitions on entrenchment apply far more broadly than just to unrepealable legislation, and once the range of entrenching government actions is expanded to include commitments made through private law, the importance of eminent domain is easy to see.

   In political science terms, anti-entrenchment rules are about preserving sovereignty and democratic accountability. A genuinely democratic government must be able to respond to the will of its constituents, and that means today's constituents, not yesterday's. (11) There can be no democratic accountability--indeed, there can be no sovereignty--if the power to act has been captured by a previous government. (12) Imagine a state passing a meta law declaring that it, and all other existing laws, could never be changed. What power would subsequent governments have? The very idea of a government as rule maker would disappear. Governments' powers are limited by the immutable policies they inherit.

   The inter-temporal allocation of power is something of a zero sum game. Allowing governments to decide their laws' temporal reach would increase the power--and, hence, the democratic responsiveness--of the enacting government. (13) But it comes at the expense of future governments. Of course, prohibiting entrenchment has the opposite effect, giving authority to the present and divesting it from the past. Nevertheless, democracy has a strongly presentist prejudice, and its concern is primarily with the ability of the government to respond to the will of the people today, but only insofar as it preserves the power of future governments to be similarly responsive.

   There is an important functional justification for anti-entrenchment rules as well: preventing inter-temporal externalities. Some entrenching government actions allow a government to reap benefits today while shifting the costs onto the future. Debt is perhaps the most familiar example. (14) Politicians often refer to government borrowing as "mortgaging the future." (15) At the most general level, this concept is absolutely right. Debt of any kind allows a government to collect a pile of cash today, while externalizing the costs of repaying onto future generations. A resulting temporal misalignment of costs and benefits can be a recipe for political malfunction and abuse. (16)

   The underlying concerns about entrenchment exist, then, whenever one government can make precommitments that are binding on the future. At this level of generality, entrenchment is ubiquitous. Everything that a government does will limit future policy choices. Building out infrastructure, like roads or mass transit, will determine the shape of future development, as will forgoing such investments. Entrenchment concerns are most serious, however, when a government, by making a specific policy precommitment, can reap immediate benefits while shifting the costs to the future. It is easy to identify some examples where entrenchment concerns are likely to be particularly acute.

   In addition to debt, long-term contracts can allow a government to secure an immediate benefit from a private counter-party while binding future governments to the terms of the contract. Whether a procurement contract for the provision of services or a development agreement promising future regulatory treatment, the effect is the same: the government can obtain an immediate or short-term benefit by binding itself to some future conduct.

   Property arrangements can similarly generate immediate gains while pushing costs forward. Selling off assets is one example. (17) Privatizing municipal functions can generate money (or other beneficial services) today, but lock the government into a private contract for the outsourced good or service. More ephemeral property rights can also be entrenching. A government that allows property rights to vest--whether development rights, a public franchise, or pension benefits--creates rights that run against subsequent governments and, in the process, locks in policy choices surrounding land use policy or labor arrangements. Physical development, too, can generate short-term gains and long-term policy constraints. A government receives a short-term political and economic boost from siting a new stadium or even just a big box store, but in the process limits subsequent governments' ability to adopt a different strategy for economic development.

   Of course, government actions are not necessarily inappropriate simply because they are entrenching. The benefits of entering into binding precommitments can easily outweigh the costs. Return to the example of municipal debt. The ability to borrow money--whether through bonds or otherwise--depends fundamentally on the enforceability of the repayment obligation. If every government could decide for itself whether to honor its financial obligations, the cost of borrowing money would presumably become exorbitant. (18) Likewise, all governments would be worse off without some capacity to enter into long-term procurement contracts, which allow them to minimize risks of price fluctuations and supply disruptions. The point is simply this: many government actions implicate a particularly complicated trade-off between short-term benefits and long-term costs. There is reason to worry that government actors are not incentivized to balance these appropriately, and so long-term government precommitments can create private law obligations that inappropriately limit future policy choices.

   The risk of inter-temporal power grabs has given rise to various legal responses. There are some actions that governments simply cannot undertake. Most directly, governments cannot enact unrepealable legislation. A subsequent government can always change the law. But other kinds of protections are in place that prevent entrenchment in its other forms. For example, state constitutions often impose substantive limits on indebtedness and also provide complex procedural hurdles that a government must clear before incurring general recourse debt. (19) These arose out of a realization in the nineteenth century that governments have an incentive to borrow too heavily against the future. (20) Similarly, governments cannot enter into enforceable contracts promising future regulatory treatment. (21) The only notable exceptions are development agreements, which generally require statutory authorization and then include significant procedural protections to minimize the risk of political malfunction. (22)

   In general, though, outright prohibitions on government actions are few and far between. They operate at the fringe to take the most extreme entrenchment risks off the table, but do not address the more run-of-the-mill government actions that can nevertheless impose significant costs and policy constraints on the future. More important, then, are the legal doctrines that protect subsequent governments'...