Abstract
The private housing market in the U.S. fails to produce sufficient affordable housing for the people who need it. Even middle-income Americans are stretched to buy or rent. If local and state governments cannot respond effectively, may the federal government simply use eminent domain to build affordable homes to correct the nation’s housing market, including the high cost of land? Conventional wisdom is that the Constitution prohibits such federal action. This understanding arises from a brief period during which the federal government built fifty housing projects—approximately 21,000 housing units—in thirty-five cities across the United States during the Great Depression. The program was effectively shut down, however, when the Sixth Circuit in U.S. v. Certain Lands in Louisville held that the federal government did not have the constitutional power to use eminent domain for the purpose of building affordable housing. Even if this holding was well founded at the time, it is not today. Takings law has evolved since Certain Lands, and it is now clear that Congress has the constitutional power to take land for affordable housing across the country to correct a national housing market failure. Whether Congress should acquire land on which to build affordable homes is a purely political question for the People, rather than a constitutional one for the courts.
Recommended Citation
Desiree C. Hensley,
Build, Baby, Build: Federal Takings for Affordable Homes,
91 Mo. L. Rev.
(2026)
Available at: https://scholarship.law.missouri.edu/mlr/vol91/iss1/6