Mark Borchardt: Republicans are inconsistent on eminent domain

May 5, 2019

MARSHFIELD — Nowhere are Wisconsin Republicans more untethered to conservative principles than when they endorse the state’s authority to seize private property for government purposes.

The United States and Wisconsin constitutions allow the taking of land for public use through a process called eminent domain.

Republicans in their 2017-19 state budget prohibited local governments from using eminent domain for recreational trails and sidewalks. Now Democratic Gov. Tony Evers has proposed in the 2019-21 budget to reverse that prohibition and restore the power to local governments they had held since statehood.

Republicans oppose Evers’ proposal on the grounds that taking land for trails and sidewalks is an egregious government overreach. As Rep. Rob Stafsholt, R-New Richmond, was quoted in the State Journal on April 8, “Somebody else’s recreational opportunity should not be forced on my property.”

Yet these same state Republicans have no problem with forcibly taking land from Wisconsin citizens and giving it to foreign businesses.

Republicans in the 2015-17 state budget expanded the types of oil pipeline business structures granted eminent domain power in Wisconsin. Emails and drafting documents obtained by Wisconsin Public Radio show Canadian pipeline company Enbridge drafted the statute changes. Enbridge wants to ensure its various business structures retain power to take private land for future pipelines

Foxconn is using the village of Mount Pleasant’s eminent domain authority to acquire homes in the way of Foxconn’s private roads in Racine County. Using the utmost in circular reasoning, the justification for condemning perfectly fine homes at the Foxconn site is that the development itself is making the homes “blighted.”

No Republican has opposed giving Wisconsin citizens’ private property to this Taiwanese company.

But property rights suddenly become sacrosanct for Republicans if the issue intersects with environmental conservation. In Murr vs. State of Wisconsin, the U.S. Supreme Court ruled that long-standing county conservation rules preventing the Murrs from splitting and selling land on the St. Croix River did not constitute the taking of their property. Shortly after the decision, then-Gov. Scott Walker signed Republican legislation overturning the conservation rules, allowing the Murrs to split the property.

So taking private property for transfer to private business is OK, according to Wisconsin Republicans, but not for bike paths, recreational trails sidewalks or river conservation. How does taking land for Canadian oil pipelines meet the constitutional requirement of “public use,” but taking land for trails and sidewalks — which are used by Wisconsin citizens for transportation and recreation — does not?

Perhaps Republicans work from a principle akin to Facebook: If the project is “liked,” the land is taken. This is exactly how conservative Milwaukee radio host Mark Belling described Republican views on eminent domain in a Nov. 9, 2017, interview in the Milwaukee Journal Sentinel: “Many of the people on my side — the conservative side — they change their opinion on this [eminent domain] if the project is something that they like.”

Such arbitrariness in whose property is protected and whose isn’t erodes public trust in government institutions and undermines citizens’ confidence they live in a fair economic system.

Seventeenth-century philosopher John Locke warned that the arbitrary taking of property by the government absolved the people from further obedience. Heeding Locke’s advice and recognizing the threat to a new democracy, our country’s Founders crafted the Fifth Amendment of the Bill of Rights. The amendment limits government to taking private land only if it is for public use. It is time for Wisconsin Republicans to anchor their eminent domain actions to the constitution and work to secure the property rights of all Wisconsinites.