The Use of Eminent Domain Powers to Combat COVID-19

By Stephon B. Bagne / Apr 21, 2020

The federal government has been delegated authority to exercise eminent domain to acquire both real and personal property, including the right to take immediate possession of that property, through the Stafford Act, which President Trump has cited as a basis for emergency powers due to the COVID-19 virus.

One of the subchapters contained in the Stafford Act identifies the following purpose:

“The purpose of this subchapter is to provide a system of emergency preparedness for the protection of life and property in the United States from hazards and to vest responsibility for emergency preparedness jointly in the Federal Government and the States and their political subdivisions. The Congress recognizes that the organizational structure established jointly by the Federal Government and the States and their political subdivisions for emergency preparedness purposes can be effectively utilized to provide relief and assistance to people in areas of the United States struck by a hazard. The Federal Government shall provide necessary direction, coordination, and guidance, and shall provide necessary assistance, as authorized in this subchapter so that a comprehensive emergency preparedness system exists for all hazards.”

In order the effectuate that purpose, “the Administrator may procure by condemnation or otherwise, construct, lease, transport, store, maintain, renovate or distribute materials and facilities for emergency preparedness, with the right to take immediate possession thereof.”

While most people associate the power of eminent domain with the acquisition of real property rights, there is a long history of eminent domain being used to acquire personal property as well. For example, United States v. Commodities Trading Corp.(1950), involved a “suit in the Court of Claims to recover ‘just compensation’ for about 760,000 pounds of whole black pepper requisitioned by the War Department in 1944.” The Stafford Act contemplates the acquisition of both real and personal property. The reference to “materials” in 42 U.S.C.A. § 5195 is inclusive of personal property while the reference to “facilities” in the same statute covers real property.

The Stafford Act’s confirmation that the Administrator may “take immediate possession” of condemned materials and facilities is consistent with the quick take nature of most condemnation procedures, in particular those governed by federal procedures and those that make sense in the context of an emergency such as COVID-19. Here, the Federal Emergency Management Agency (FEMA) is the Administrator and it may use the powers of eminent domain delegated to it to secure facilities for the treatment of patients or the housing of emergency response personnel, medicine or protective gear, food, or other goods required by the fight against COVID-19.

However, the acquisition of materials and facilities under this statute does not limit the government’s obligation to pay just compensation. 

Similar powers may exist under state law. Several governors’ emergency declarations include references to the seizure of items required to fight COVID-19.

Please feel free to contact me if your real or personal property is subject to acquisition. While we as a nation must come together to fight this emergency and the federal government has been delegated the power to do so, just compensation concepts still come into play.