Supremes: City Land Seizure Constitutional

Jeff Alworth

The Supreme Court this morning ruled that local governments may seize land from homeowners against their will and transfer the land to private developers.  Homeowners in New London, Connecticut had filed a lawsuit to prevent the city from seizing their land for a $300 million waterfront facility for Pfizer that the city said would raise more tax revenue.  Writing for the majority, John Paul Stevens was joined by Kennedy, Souter, Ginsburg and  Breyer.  Opposing the decision were Rehnquist, Scalia, Thomas, and Sandra Day O'Connor, who wrote the (vehement) dissent.

The key argument the city used to support the seizure was the "takings" clause of the Fifth Amendment ("nor shall private property be taken for public use, without just compensation").  The homeowners disagreed, arguing that the development didn't meet the "public use" criterion in the amendment.  (They didn't contest the "just compensation" issue because they didn't want to give up their land at any price.) In his opinion, Stevens wrote that New London officials:

"... were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference.  The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including--but by no means limited to--new jobs and increased tax revenue.

"Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment."

"Without exception, our cases have defined [the "public use" clause] broadly, reflecting our longstanding policy of deference to legislative judgments in this field."

I'll leave the legal analysis to the professionals, but this raises a number of interesting political questions. 

My first reaction to the ruling is strongly negative, so I'll be interested to hear if there's a silver lining.  Looking superficially at the stories about the ruling, I can't see how it will do anything but further weaken citizen control in public policymaking. 

I'll post updates with analysis from around th blogosphere as I find them.


[Update: Law blogger Eugene Volokh shares my intrigue about the politics of the ruling:

The funny thing is that, in Kelo v. City of New London, it is the (mostly liberal) majority's test that would give the government flexibility to serve public goals by taking property and selling it to private parties, when the government thinks the private parties will be better positioned to provide the public benefit. And it is the conservative dissenters' test that would give the government a strong incentive to own and operate various enterprises itself, or insist that whoever owns and operates them labor under the burdens of being a "common carrier."

Reason blogger Julian Sanchez takes a cynical view:

The Supreme Court has rendered its verdict in Kelo v. New London, and the widely-expected result has come to pass: a 5-4 loss for property rights.  As Raich taught us that growing pot in your backyard for personal consumption is "interstate commerce," Kelo informs us that taking people's homes to hand over to private developers building an office complex is a "public use." 

SCOTUSblogger Lyle Denniston finds nuance in the ruling by Anthony Kennedy:

According to Kennedy, if an economic development project favors a private developer, "with only incidental or pretextual public benefits," that would not be tolerated even by applying the minimum standard of "rational basis review."

His opinion elaborated: "There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause." He called it a "demanding level of scrutiny," thus indicating that it was something like "rational basis-plus."

Others opining: Argue with Signposts; Vodkapundit; Poly Sci prof Steven Taylor, and Outside the Beltway.  Right, left, libertarian--no one likes this ruling.]

[Further Update.  Many in the comments thread (including me) have not been pursuaded that the New London project met the standard for "public" use.  Ah--but are we misreading the case?  TAPPED's Jeffrey Dubner thinks so.

The only way it appears to stretch allowable eminent domain takings further than did the preceding century of rulings is if you construe the recipient of the appropriated land as a private entity; that's the angle from which Sandra Day O'Connor, William Rehnquist, and Antonin Scalia criticize the ruling.

But the New London government didn't give the land to private developers to do with it as they please, with a vague hope that the profits would redound on the community; they shifted control to a development agency commissioned by the city to carry out a government-approved plan.  [emphasis added]

Yet more analysis for junkies: Yglesias, The Corner (surprisingly trenchant), and one more from TAPPED, also calling the ruling "illiberal."]

  • Harold Cade (unverified)

    Mussolini defined fascism as "the union of corporate and state interests". We've certainly been heading that direction; guess we've arrived.

  • (Show?)

    ...and the majority of people living in such areas will be poor minorites. Doesn't seem useful for the public to tear down people's homes so Walmart can build another store. This decision was the topic on Talk of the Nation today.

  • Jonathan (unverified)

    Sorry, but the comments and post sounds a little too Nader-esque to me. Public and private resources are often combined in development. As I understand it, getting private money is the current fad for public use development. To that end, isn't the Meier & Frank/PDC project right in line with this issue (and struggling with whether or not it's a public purpose)?

    As for who is harmed, presumably the other property owners in the area whose property is not being taken will benefit from the new development, at least in terms of property value.

  • Harold Cade (unverified)

    Now there's a good right wing point of view; everyone that's not on board is the same. Nader, Mussolini, what's the diff.? Right or wrong, I think a lot of people perceive the M&F issue as being about the building, not the corporation.

  • What rights are left (unverified)

    We can thank Justice John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer and Anthony Kennedy for removing some of our last property rights. How come it seems like it's the conservative justices lately sticking up for liberal rights? It might be a different nation if Thomas Jefferson got his way, 'Life, liberty and property'.

  • (Show?)

    So I think the right wing of the court just said they think local governments are unfairly dominated by business interests. Surely this is an argument for publicly financed campaigns!

  • Steve Bucknum (unverified)

    This decision saddens me greatly. But I'm not surprised.

    Often times governmental policies are tested in rural areas before implementing them in urban areas. The general perception in rural areas is that the State and Federal government has been increasingly, over a period of several decades now, showing muscle in restrictions and incremental takings. We were not able to resist this effectively, as without urban support, rural areas do not have enough political clout.

    Now the messy bird of government takings has come to roost in the urban areas with this decision. Predicably, there will now start to be enough outcry to do something about it. It will take years. It will take time for the folks in urban areas to wake up to this being something that will affect their lives. It will take time for the government to generalize the concept of taking property for public development. It will take time for the reaction to set in.

    It is as predictable as water running downhill after a good rain that this issue of government takings will now grow bigger and bigger.

  • (Show?)

    Manno de la manno. Oregon just had an initiative about "takings" a few years ago and it passed by the people and was ostensibly overturned by the DA's right? I mean if my memory serves me anyway.

    And THAT was about seizing property from at least "alleged" criminals.

    Now you have a Supreme Court dominated by liberals that say that you don't have do anything wrong to lose your home. Just happen to live where Wal-Mart want's to build.


    Amazing how from time to time the right and left swing so far around that they agree eh?

  • (Show?)

    Now you have a Supreme Court dominated by liberals...

    Ya lost me on that one Ted. "Dominated" to me means a heck of a lot more than 3-4 justices.

  • Becky (unverified)

    I was involved in preparing information for a trial in a similar situation recently. The city had condemned a large tract of middle class homes for development of a mall and paid the homeowners market value for their homes. We were working with the one hold out, who had been operating a business out of his converted house, which had excellent visibility and lots of traffic. In his case, the price the city would pay (based on its residential zoning) was far less than the property was actually worth as it was being used and basically the man would lose his business without compensation. During the course of the trial we realized that the city had purchased the lots at a residential rate and sold them for that same rate to the developer, who then owned a large solid tract of land with a new commercial zoning - far more valuable per square foot than residentially zoned land. And, as you can imagine, the developer was friends with those who made the decision - it was a sweet insider deal. He made an ungodly sum of money. Now maybe that isn't always the case, but I would bet that as these sorts of redevelopment condemnation cases begin to proliferate, more often than not it will be a money-making deal. You just can't give this kind of power to government without opening the door for corruption.

  • (Show?)

    Amazing how from time to time the right and left swing so far around that they agree eh?

    Politicians often use the phrase "common sense" to describe their own policy positions, no matter how looney they may be. The implication is that the other position is wacky, no matter how sensible it may be. But there really are some common sense issues out there, and I think with few exceptions, Americans will agree that what the city of New London did violated the spirit of the "public use" criterion, whether or not it violated the letter of the law. And that provides us with an opportunity: there are legislative remedies to the problem. Based on the Bronx cheer this ruling got, politicians should be lining up to offer one of those remedies.

    Becky, your observation is a keen one, and I think it identifies future battlegrounds. This case didn't address the issue of "just compensation," but you can bet the next one will. One of those easy legislative remedies--albeit a band aid messure--would be to pass a law that values seized property at the rate of the planned zone, not the current one.

  • Gregor04 (unverified)

    Maybe when the government seizes a persons property they should provide them with replacement value, rather then market value. Maybe they ought to guarantee the loans to those who lack credit before they push them off their property?

  • (Show?)

    I actually think it was the right ruling to make, based on the original impetus for the clause, the broad powers of taking for private development that have existed at least since 1954, and the deference shown to elected bodies to determine the manner in which the power is used. I think a lot of people are shocked to discover that cities have had this power for years--and imagining their home being suddenly bulldozed to build a SuperCenter. I don't see that as especially likely in most cases, given a) preexisting zoning regulations that would require a change from residential to commercial or industrial, and b) the right of redress and review of the public. How many ornerous private enterprises have been stopped in Portland recently?

    I wrote about the ruling last night at Also Also.

  • dispossessed (unverified)

    "...I think with few exceptions, Americans will agree that what the city of New London did violated the spirit of the "public use" criterion, whether or not it violated the letter of the law."

    The Court effectively changed the definition from "public use" to "public purpose." Determining that economic development, with the taxes and jobs it brought, served a public purpose outran the formerly narrow "public use" criterion. As Clarence Thomas wrote, "The court has erased the Public Use Clause from our Constitution."

    It is interesting or ironic that the Court threw back to the states any new limitations on eminent domain takings, in light of other recent rulings which upend state authority (medical marijuana for the most recent) in favor of federal authority, regardless of state legislation.

    And it is a mistake in my opinion to look to the vagaries or specificities of how compensation is determined in the face of this radical revision of property rights vs. the State.

  • (Show?)

    The Court has recognized for a while, at least since 1954 and the Berman v Parker decision, that it has little business deciding the question of "public use,"--it is one for legislative bodies to decide.

    From yesterday's ruling:

    "Though the city could not take petitioners’ land simply to confer a private benefit on a particular private party, see, e.g., Midkiff, 467 U.S., at 245, the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted “to benefit a particular class of identifiable individuals,”ibid Moreover, while the city is not planning to open the condemned land—at least not in its entirety—to use by the general public, this “Court long ago rejected any literal requirement that condemned property be put into use for the . . . public.” Id., at 244. Rather, it has embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158–164. (p. 1)"

  • (Show?)

    It's worth noting that George Bush's single successful business venture and the basis of most of his current personal wealth, was all about forcibly taking private property to build the Texas Rangers stadium. His group then worked with government officials to get the taxpayers to fund the construction.

    I just love our current champions of private sector virtue, and their scorn for people who turn to the public sector for financial help.

    One wonders if the conservative side of the Supremes had any regrets about voting against the very practices that sustain their Glorious Leader.

  • panchopdx (unverified)

    One wonders if the conservative side of the Supremes had any regrets about voting against the very practices that sustain their Glorious Leader.

    If the Texans' stadium is publicly owned then these are different practices. However, neither is defensible.

    I doubt the conservative Supremes think very highly of the corporate welfare doled out to professional sports franchises by building them stadiums with public funding. But they aren't in much of a position to do anything about it, unless the taxing or bonding authority for cities is somehow unconstitutional.

    What worries me the most about this decision is the power of a city to downzone private property to reduce its value then condemning it, handing it over to a private developer and then upzoning it.

    At least M37 will provide some protection against this possibility.

  • littlevoice (unverified)

    This isn't really that much of an earth-shaking decision. Local government have always had this power and, as the majority mentions, it doesn't veer much from how railroads acquired all their land a century ago.

    Given that the 5th Amendment did not originally apply to the states, we should be prepared for an eternal grappling with it's EXACT meaning now that it does. While this particular decision seems to be a little weak, there is a silver lining. Most notably, the court makes the "public" distinction a local decision, not a national one. SCOTUS didn't dispossess the people of New London of their land, the city of New London did. Let the people of New London and the tools of democracy decide whether or not that was the right decision...either vote 'em out, or keep 'em in.

  • (Show?)

    I agree with littlevoice -- I'm surprised at how vociferous the reaction has been to this decision. Most experts never thought the petitioners had a snowball's chance. And to hear this decision criticized from the left is bizarre. Are people aware that the brains behind this lawsuit are some of the same arch-libertarians who believe that most of the modern welfare state is unconstitutional?

    This case just wasn't that big a deal. It has always been okay for government to seize private property for public use -- as long as it pays "just compensation." The owners will get compensated in this case. The issue here was the extremely novel argument that courts should get in the business of deciding what constitutes a "public use," and conclude that an economic development project doesn't qualify. Here's what's wrong with that argument. If a city wants to build and operate a new stadium, there is no question that the city can condemn the land, pay compensation, and build the stadium. Why should the answer be different if the city wants the stadium to be owned and operated by a private party?

  • dispossessed (unverified)

    "The issue here was the extremely novel argument that courts should get in the business of deciding what constitutes a "public use," and conclude that an economic development project doesn't qualify. Here's what's wrong with that argument. If a city wants to build and operate a new stadium, there is no question that the city can condemn the land, pay compensation, and build the stadium. Why should the answer be different if the city wants the stadium to be owned and operated by a private party?"

    No, the issue was not that courts should decide what constitutes "public use." The issue was that SCOTUS cast out the tight restriction of just compensation for public use by which the framers of the constitution had restricted government takings. By this radical new ruling, the government can now take your property (with compensation) and sell it to someone who will pay higher taxes out of their use of it. That is the so-called "public purpose" that upends the former "public use."

  • (Show?)

    what's radically new?

    Berman v Parker made clear takings for economic development was OK Midkiff made clear takings that didn't even involve the government as a party to the transaction was OK

    so why wouldn't New London's plan be passable under the same, very broad standard?

    I think people were just shocked to discover that the government can take your land if it wants--sort of like the last, what, 5,000 years? Maybe it's bad policy--but as judicial review it makes plenty of sense.

  • (Show?)

    The more I learn, the more I dislike this ruling. I've heard some liberals describe it as a non-activist reading of the law, in line with previous rulings (as some of you here suggest). I'm not a lawyer, but I really can't see the "public use" criterion fitting this case. It is a pretty broad re-defintion of "public," in my mind. Based on this ruling, what exactly isn't public use?

    What prevents cities from seizing land under any justification now?

  • dispossessed (unverified)

    TorridJoe, Justice O'Connor made elaborately and carefully clear that the differences in those precedents were far deeper than the similarities. Jeff, I think you would be interested to read the case and her dissent.

  • (Show?)


    To be clear, I'm not addressing legal issues here, nor am I ready to argue that the Rangers or the President did anything illegal in this case.

    My reading of the news though, is that the Rangers are not publicly owned and that the "takings" portion of the story is in fact very close to what happened in New London. So I conclude two things:

    1) Allegedly libertarian Republican Bush campaigned for governor on the issue that he would protect private individuals from government takings, while he was doing the exact opposite in his own business affairs.

    2) $130,000 and some pro campaigning put into this effort yielded a 2 to 1 victory in which local taxpayers agreed to finance a bunch of already fat cats to a huge windfall profit. The team owners wound up with a huge finacial asset in the center of 260 acres of condemned land that they also developed for their own private profit.

    My argument is that this is hypocritical on the face of it, and long term, results in wealth having an unfair advantage in the accumulation of more wealth at the expense of the middle and lower classes. I believe this to be destructive to the basic concept of capitalism as espoused by Adam Smith and anti-libertarian as it relates to using government to further enrich the priveleged.

  • (Show?)

    Well, just to throw something more into the mix (I'll post it in the update section), TAPPED's Jeffrey Dubner weighs in. His reaction? "[A]fter actually reading the decisions, it's pretty hard to have a problem with it."

    The only way it appears to stretch allowable eminent domain takings further than did the preceding century of rulings is if you construe the recipient of the appropriated land as a private entity; that's the angle from which Sandra Day O'Connor, William Rehnquist, and Antonin Scalia criticize the ruling. But the New London government didn't give the land to private developers to do with it as they please, with a vague hope that the profits would redound on the community; they shifted control to a development agency commissioned by the city to carry out a government-approved plan. [emphasis added]
  • dispossessed (unverified)

    I suppose Mr. Dubner would love the PDC, and though it would not surprise me to see the Mainstream Democratic Left applaud public takings for public interest (beyond "use") enterprises, I would be surprised or interested to see how they rationalize paving (literally) the way for Pfizer Corp.

  • panchopdx (unverified)

    they shifted control to a development agency commissioned by the city to carry out a government-approved plan

    As if that makes the whole thing clean.

    That's sort of like flying a suspected Al Quaeda sympathizer from the US to a foreign country where rules against torture don't exist.

    You can argue that it is legal all you want. Somethings are just wrong anyway.

  • ron ledbury (unverified)

    Even post-war treaties often demand a 99-year lease rather than the full transfer of ownership.

    With an extended term lease, of the land, the private developer can be obliged to cover the higher property taxes resulting from the higher use and the higher value of the improvements. The buildings will surely be depreciated by 20, 50, and certainly by the 99th year.

    The party that is compelled to relinquish use of the land itself, even if temporarily, retains the long term benefit of the upzoning. The upzoning is usually wrapped up as a packaged thing in some development proposals.

    This way we would cut out the incentive of well connected developers to obtain the personal benefit of years of restricted development rights (artificially restricting value, in the "public interest") where they can then uniquely be given the public go ahead to do more than the previous owner was allowed to do, or could afford to do.

    I do not see the need to fully remove the property right forever rather than temporarily. The public interest and the authority of the elected local folks is just short term anyway, isn't it?

    The artificial restriction of development rights is at the heart of lots of land use decision making, particularly with consideration of things like Urban Reserves. The issue is just the delay of development until a future date. The temporary restriction clearly lowers the measure of what constitutes "just compensation" today.

  • Don (unverified)

    Courts don't determine what a Public Use is. Legislative bodies do.

    The Supreme Court deferred, as it has always deferred for the past half century, to the appropriate legislative body to make the determination.

    As it now stands, since there is no Federal Law on the matter, the several States may make that determination for themselves as their elected representatives and/or voters see fit. What CT decided for itself would probably Not be what OR would decide in a similar circumstance.

    Works just fine for me.

    There's nothing that now mandates any decision on this matter anywhere else. The court merely reaffirmed longstanding judicial doctrine on this matter. Indeed, I wouldn't personally want the Supreme Court to make a one-size-fits-all determination of what is/is not a Public Use in each and every circumstance out there. To do so would be to invite an endless flood of litigation.

    Oddly, there are Big Government types of both the Right and the Left who seem to want to require a federal "solution" to everything under the sun. There's nothing the least bit wrong with leaving this sort of authority within the hands of elected legislators, and requiring that they take responsibility for their actions. Indeed, that's kindasorta what the whole idea of a Federal system is about, seems to me.

    Further, there is no Property Right involved in this case. Property owners do not now, and never have had an absolute Right to refuse to sell if they do not approve of the reason for an Emminent Domain procedure. This decision, when you read it through, centered on which government entity has the authority and responsibility to make the determination of what a Public Use is.

    Is it the courts? No, the Supreme Court says it is not.

    Is it the Congress? It could be, were it to act on non-federal property Emminent Domain acquisition requirements. But to date, it has Not done so -- though Mr Justice Kennedy's discussion appears to hint that just perhaps it should sometime soon. If/when it does, then that statute can be discussed.

    What does that leave? It leaves the State Legislature as the determinor of what a Public Use is. It leaves each state legislature to make that decision for only its own state.

    This should be seen as a conservative ruling in favor of the smaller, more local unit of government over the larger and more distant. I quite approve.

    Frankly, I would rather such matters be kept Local rather than Federal. Given this administration and this congress, I believe that the decision of Oregonians on a similar matter would be preferable to that provided by the feds.

  • ron ledbury (unverified)

    Don, lets go local . . . really really local. Suppose a homeowner association claims that raising a flag 50 feet into the air on one's front lawn is either mandatory, or prohibited. Suppose as an enforcement mechanism they, by majority vote, conclude that they shall order that the home of a non-compliant neighbor shall be sold to someone who will comply with the local rule.

    I'm sure glad that the court did not overrule Marbury v. Madison (1803) and conclude that the court could not even opine on what the constitution says. The federal court does still hold jurisdiction to decide if a local government, or association for that matter, has violated their duty to act in conformance with the superior authority of the federal constitution, particularly with regard to one of the enumerated protections for individuals spelled out in the bill of individual rights.

    Don, could an order by one's neighbors that they raise a flag or not raise a flag be contorted to sound as if it is for the general welfare of all, or for some public economic benefit (perhaps to avoid a boycott by outsiders, who knows what else)? Is your conclusion so broad as to exclude such a situation even from review by a federal court?

    The right of an individual should not be scaled up or down based on the size of the group that seeks to eviscerate a right of an individual. The description of the individual right itself should not vary if it is home owner association that is formed under state law or a local government or a state or the federal government that seeks to attack that individual right.

    At what point would you say that the court should step in to protect an individual?

    I personally like the notion of borrowing something from free speech cases, that of requiring that restrictions be narrowly tailored to suit a valid public purpose. Here, in Kelo, the public purpose could be met with a lease rather than a transfer forever. Suppose Pfizer goes belly up next year due to some yet to be discovered accounting fraud or what not. Suppose the land itself then reverted to the Kelo family. The government would again have to summon up public purpose rationales to do the same thing all over again. Suppose Pfizer pulls an Intel on the locals and threatens to leave unless they are granted an exception upon certain property taxes? Would they have less freedom and power to do so if they had only a leasehold interest, confined to meeting a specified (present and continuing) public purpose?

    [Don, feel free to break up my sentences into itty bitty pieces if you feel so inclined.]

  • dispossessed (unverified)

    Still, are we not talking about something radically different here, when public purpose has replaced public use? Sure have in my eyes -- and mine are not the only seeing that way.

  • Don (unverified)

    As to the discussion of the homeowners' association, that's merely a Hypothetical Oppression. Homeowners' Associations don't have that sort of authority, and the comparison is simply not apt.

    The entire idea of Emminent Domain was written into the US Constitution for a reason. It was a good one. Even the FFs were interested in and involved with Economic Development. If they weren't there'd have been a sight fewer canals and railroads, just for starters. A bunch of those initiatives were undertaken Not by the federal government, but by state and/or local governments. Their operation and ownership, however, sometimes went to Private concerns -- since the government folks at the time didn't want to be burdened by the cost of ownership and operation.

    The court did not overrule Marbury v Madison, but neither did it choose to substitute its judgement for that of local/state government entities closest and most accountable to the folks affected by the Emminent Domain process. To do so for this specific case would result in another flock of litigation for every other specific case out there that some disgruntled property owner wanted to object to because of the specific use promulgated by his/her local/state governments.

    Local and State government entities surely Ought to be held accountable for their actions in such matters. The salient question, however, is By Whom? Judicial activists -- and even, somewhat surprisingly those who usually oppose such judicial activism when it infringes on their favorite shibboleths -- demand that it should be the Supreme Court. The court, not at all unreasonably, asserts that for these sorts of matters, the legislative branch of government(s) ought to be the entity held accountable for what it does.

    Seems to me that should happen more often.

    There is no, I repeat No individual property right threatened by this decision. The only Rights built into the 5th Amendment on this matter are an assurance of Due Process of Law (and that surely happened) and Just Compensation (an issue not before the court in this case). Otherwise none.

    Since there is no property Right to oppose an Emminent Domain procedure across the board, there is likewise no Right to oppose it based on a prospective use. The Constitution notes that it should be acquired for a public use, but is silent on what entity will define what a Public Use really is. There's no question that for federal acquisitions, that entity is the legislative branch. Case law indicates that in all cases of federal Emminent Domain, the congress is the one to determine such uses, authorize and fund them, and promulgate the regulations for implementing them.

    Seems to me the same general principle really Should apply to non-federal acquisitions, save that in those cases, the congress need not do it (though Mr Justice Kennedy's remarks suggest that it could and maybe even should), and that authority be left to the legislative branches in the several States actually affected by the action. Those entities are properly to be held accountable for doing so, and the voters in those states or localities have exactly the appropriate tools for doing so.

    Why is the Supreme Court a better judge on such policies than they?

    Makes no sense to me at all.

    The court has always construed Emminent Domain broadly. Nothing has changed via this case whatsoever. It continues to do what it always has done. The local legislative branch continues to have the same authority and responsibility it always had in the past, and that is Precisely the appropriate place to leave it, for future policy discussions.

    As for specific future arrangements, none of those were before the court and none of them are affected by this decision in any particular way. Were Pfizer (which btw is not acquiring any of this property in New London) to renege on its past promises, the appropriate place to handle that would remain local. I doubt such a problem would even make it to the federal appeal level. Were New London residents to want to undertake a different sort of arrangement, they were and remain entirely free to consider whatever options they prefer in the matter.

    Nothing New has been undertaken here. If many people, as seems to be the case, were heretofore unaware of the nature of Emminent Domain processes and authorities, then this is an education for them that they may well wish to consider when their local governments initiate such procedures in the future. That's fine with me, and precisely The appropriate way to deal with it. There is no New precedent set. This is an affirmation of past Supreme Court doctrine, not a promulgation of a new one. There is no mandate that the New London actions Must hereafter be applied to any other Emminent Domain procedure. A different local jurisdiction may -- probably even would -- have an entirely different take on it. That's also just fine too.

    If we are Ever to stem the ongoing, endless movement of governmental authority toward the federal government, at the expense of State and Local governments, seems to me that this sort of decision is one of the bricks appropriately placed in that wall. There's nothing wrong with making local and state governments More accountable to their residents than they are. I think that's A Good Thing on its face.

    Even if/when they make arguably Wrong decisions, at least they are Their decisions to make, and to be held accountable for. Otherwise, when we face yet another Federal Rule or Mandate, local officials won't be able to whine yet again that the feds made or prevented them from doing or not doing something that is properly under Their sphere of authority.

    Recent news reports indicate that the CT State Legislature is revisiting its assumptions on Emminent Domain within the state. Good, sez I! They ought to do that. Better them than a Supreme Court hearing a case limited to Connecticut, then devising a rule for all states and localities from it.

  • ron ledbury (unverified)

    While Homeowner Associations do not presently have eminent domain authority, a legislative body such as a state legislature could surely chose to give them such an option, based on their whims. It is an apt hypothetical in presenting a position so extreme that you must contemplate retreat from your extreme position.

    Canals and such are classic examples of public use rather than the new found exploration of the limits of public purpose when giving from private party A to private party b. The Port of Portland (and other ports in Oregon) were the largest recipients, by far, of early Economic Development dollars from the lottery division. I would not call the Port of Portland private; but it is far closer to representing true economic development than giving something to Siltronics (not an Eminent Domain authority case but representative of the notion of the outer limits of public purpose exceptions to capitalism on equal terms among competitors). Is Siltronics allowed to continue to operate privately only by reason that it is too burdensome for the public to take them over, to advance the notion that jobs jobs jobs is all that is needed today to provide a public purpose?

    The disgruntled property owner is not just the owner that is the present target but all potential property owners for whom the rationale of take over could be applied.

    The Supreme Court has never said, for example, that Congress or a state entity could not construe the constitution so as to conform their conduct to the law. Rather, if a judge and an elected official disagree as to a constitutional interpretation, the judge wins; but this really only rises in the judicial context where a legislative body oversteps their reach, always at the cusp of authority.

    The cusp exists, analytically and judicially, and always will. The cusp is not gone. Rather there can be instances of exceptions based on the Political Question doctrine and such, which do not themselves challenge the existence of a cusp, but act as an end run so as not to get into a head on battle between branches (at least as articulated at the federal level). The claim of judicial activism, regarding economic matters, and the protection of individual rights specifically given to the judiciary, is tantamount to calling all economic legislation a Political Question that is so profound as to cause a constitutional crisis were a judge to overturn economic legislation.

    When a legislative body, by a majority, either advantages or disadvantages a group through economic legislation there as no legislative remedy. It is a tautology. The remedy does not exist but for the role of the judiciary to enforce (at least at the state level) equal privileges and immunities provisions that have no purpose for existence other than to constrain legislative bodies. In this realm, laws such as the Intel law that is worded neutrally so as to authorize tax breaks only to firms making an investment of at least 100 million dollars violate such notions of economic fair play embodied in the equal privileges and immunities clause; as to the economic realm rather than just to classes of folks who might be characterized as having immutable individual characteristics.

    In our federalist system the state folks do not derive their authority from the federal government. Jeff's wording is odd:

    "The key argument the city used to support the seizure was the 'takings' clause of the Fifth Amendment ('nor shall private property be taken for public use, without just compensation')."

    It seems to assert that the state gets its authority from the existence of the Fifth amendment. Rather the state can do most anything it wants, as a sovereign entity, except where it is prohibited from doing so. And the framers envisioned instances where the federal government would be best suited to protect the individual rights of citizens of the several states.

    I do not view the takings issue as a sole grant of authority, nor would any lawyer, rather it is just one line of defense to protect an individual. The state equal privileges and immunities clause is yet another. The takings issue, and the attempt to define not merely what is or is not a property right but the cusp of the authority of the federal judiciary, would never have risen to the top had the equal privileges and immunities principals, in the economic realm, had halted the gift from one private party to another private party.

    Where does one turn to protect a fair market place within a given state when it is the state itself, with the complete deference by the state judiciary, that attacks individual property rights? The Eminent Domain inquiry, as you note, by the federal judiciary, might be the wrong arena, but this should not be interpreted as a more blanket rejection of the recognition of property rights, which after all are just a set of societal protections of individual claims to particular things to the exclusion of others. The notion of property does include the use of property for gainful activity, in fair competition with both private parties . . . and governmental bodies acting in a proprietary manner or offering unequal aid to themselves or to a private party, as with Pfizer, Siltronics and Intel.

    To me much of what passes today as economic development, is at variance with the equal privileges and immunities, and is simply a redefinition of graft and government by cabal with a happy name. The Supreme Court is not well suited to solve these unequal privileges through the assertion of prohibitions on takings for public use versus public purpose or whatever definition might be devised, but that does not thereby make the graft legal . . it is just the wrong claim to raise in court.

  • panchopdx (unverified)

    Oddly, there are Big Government types of both the Right and the Left who seem to want to require a federal "solution" to everything under the sun.

    Yeah. We "Big Government types" want the federal government to do silly things like enforce the Fifth Amendment against the states.

    Don, if you want to argue that the 14th Amendment should be rolled back to allow the states to individually determine whether various provisions of the Bill of Rights apply to them, I'll listen.

    I might even agree with you, if you make the argument with consistency.

    But since I doubt that you really want to prevent federal protection of your right to privacy, speech, speedy trial, protection against cruel punishment, etc., to ONLY apply to federal government actions, I'm going to have to call BS on this argument.

  • Don (unverified)

    If I wanted to make that argument, I would. I do not and am not.

    Check out Paul Greenfield's column in today's (6/29) Oregonian. It says about exactly the same thing I've been saying:

    This decision is Nothing New. It does Not contravene the 5th Amendment. It does Not set a New Precedent.

    It merely leaves the decision-making authority to determine what is/is not a Public Use for Emminent Domain discussions precisely where it has Always been since the inception of The Republic -- in Local and State Governments, where it is most amendable to being considered by the very people it most affects.

    This is a Profoundly conservative approach to the matter, but it should also appeal to Progressives who seek to make government at All levels more accountable to The People.

    Why there is so much arm-waving and general ranting about it escapes me altogether.

  • Don (unverified)

    Not that I think anyone will get to this, but it's worth a mention that a truncated version of this column appeared in today's Stateman Journal. The longer one is better.

    I disagree with Greenberg on many things, but this time he's got it correct:

    June 28, 2005 Paul Greenberg

    Wanted: A little perspective, please | What's the most shocking thing about the U.S. Supreme Court's decision last week that government has the power to take private property for public use — always with the proviso that just compensation be paid?

    It's that anybody should find it shocking.

    What, after all, is so new about the legal doctrine called Eminent Domain, which has been around at least since the Fifth Amendment?

    Nor has the reason for such seizures basically changed: public use — by which is meant more than just roads, bridges and other clearly marked public property. It has come to mean economic development in general.

    This mix of public with private interests in the American system is at least as old as the Republic itself.

    And the legal question at issue has remained much the same since Alexander Hamilton envisioned a grand union of public and private interests to develop the country, and John Marshall handed down a series of landmark decisions that made Hamilton's dream a reality. The question, simply put, is: How much power does government have to enter into joint projects with private enterprises?

    The 5-to-4 answer to that question last week, in Kelo v. City of New London, was: Plenty. Not unlimited power. Not arbitrary power, but still enough to buy land a city wants for private economic development — the kind of development that promises to benefit the public in general, and therefore is, yes, a public use.

    That's why cities and states are so eager to attract industries — not just to collect taxes on them but to create jobs for their people and provide all the other benefits of a growing economy. That's shocking?

    The only surprising thing about this ruling is that Sandra Day O'Connor, whose swing decisions tend to be so much impenetrable mush, should have suddenly taken a clear position on a legal issue. This time she came out swinging:

    "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms . . . ."

    Quick, hide the women and children! Board up the windows! They're coming for your house!

    Please, a little perspective. Consider:

    These property owners are still entitled to just compensation, which may turn out to be more than fair market value if — like some of the folks who gentrified this old neighborhood in New London, Conn. — you've got not just a lot of money but a lot of emotion tied up in your dream home.

    Also, the local government that decided to take this property (and pay for it) is still accountable to voters who can throw the rascals out.

    And finally, to quote the justice who wrote the majority decision in this case, Anthony Kennedy, there are still various state laws in place that can prevent such seizures, depending on the circumstances in each case. And circumstances still alter cases.

    Federal law needs to remain flexible enough to respect local decisions, rather than setting down some line in the sand that state and local governments dare not cross.

    As for Justice O'Connor's fear that people with money and friends will have the greatest influence on the political process, that's scarcely a shocking new development; it comes with the territory called representative democracy.

    But so does the best defense against undue influence: a vigilant public rather than an over-excitable court. The cure for the abuse of democracy remains more democracy, not a narrow reading of the Constitution.

    Let it be said for those justices who joined Sandra Day O'Connor in dissent that they didn't pretend their position was justified by previous precedents. Clarence Thomas, who's a kind of Antonin Scalia's Antonin Scalia, simply came out in favor of revoking half a century of court rulings defining what's public use. He gets high marks, as usual, for candor and logic. You can tell where he's coming from — and where he would take us.

    Unfortunately, it's not an attractive destination for those of us who think economic development in general — not just roads and bridges — is a worthy public use of land.

    No, we wouldn't favor seizing private property just for the sake of seizing it. But without the power of eminent domain, there might be no Nissan plant covering 1,400 acres at Canton, Miss., producing thousands of jobs in a once-depressed part of that state. Or the new NASCAR raceway that's reviving Kansas City, Kan., or . . . well, let's just say I wish Arkansas's Delta were doing as well.

    The big problem with the strict constructionist/original intent/literal-minded version of constitutional law is that it lacks the genius of the Constitution itself: language that is so flexible it opens a whole future of possibilities while remaining rooted in past rights and practices.

    Just where to draw the line between those competing values requires that most indefinable of qualities: good judgment. And in this case, a slim majority of the court would seem to have exercised it. There should be nothing shocking about that.

  • dispossessed (unverified)

    "Why there is so much arm-waving and general ranting about it escapes me altogether."

    Because your house & neighborhood can now ostensibly be taken by your government to give to another private party who will develop & use it in a more lucrative interest. The difference is whether one thinks (as many do, and you do not) that there is an appreciable, even radical, difference between "interest" and "use."

    You are perfectly happy to say, "Fine, we will argue and decide it at the local level." I would have been perfectly happy to say that the government can take my property not only with compensation (as ever, intact) but solely for public use.

    There is a difference between infrastructure (roadways and railways) and the developments that follow them (houses and businesses). You are saying that because eminement domain can be used to establish the infrastructure, it follows that it can use it to establish -- or alter -- what follows.

    Whether you actually fail to see this distinction, or in the interest of rhetoric decline to acknowledge it, is not entirely clear. But there is no shortage of opinionators beyond you and Mr. Greenfield who do.

    And whether you are talking federal government, or state, or local, you are talking about a reach of governmental authority that chaffs against the grain of individual rights. SCOTUS is the ultimate ruler on what is or is not constitutional. And as to federal v. state, just as Oregon State is free to expand the boundaries of free speech, it is not equivalently free to restrict them, because those rights are ultimately guaranteed in the US Constitution. Just as the petitioners (Kelo et al) appealed to the Court for protection in the land rights case. And -- narrowly -- lost.

  • Don (unverified)

    "Because your house & neighborhood can now ostensibly be taken by your government to give to another private party who will develop & use it in a more lucrative interest."

    It is now Now in a place like that. It always Was in a place like that. Kelo changed nothing with regard to that status.

    The relevant ORS reference is

      457.020 Declaration of necessity and purpose. It hereby is found and declared:
      (1) That there exist within the state blighted areas.
      (2) That such areas impair economic values and tax revenues.
      (3) That such areas cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the state and that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health, safety and welfare, fire and accident protection and other public services and facilities.
      (4) That certain blighted areas may require acquisition and clearance since the prevailing condition of decay may make impracticable the reclamation of the area by conservation or rehabilitation, but other areas or portions thereof may be susceptible of conservation or rehabilitation in such manner that the conditions and evils mentioned in subsections (1), (2) and (3) of this section may be eliminated, remedied or prevented and that such areas should, if possible, be conserved and rehabilitated through appropriate public action and the cooperation and voluntary action of the owners and tenants of property in such areas.
      (5) That the acquisition, conservation, rehabilitation, redevelopment, clearance, replanning and preparation for rebuilding of these areas, and the prevention or the reduction of blight and its causes, are public uses and purposes for which public money may be spent and private property acquired and are governmental functions of state concern.
      (6) That there are also certain areas where the condition of the title, the diverse ownership of the land to be assembled, the street or lot layouts or other conditions prevent a proper development of the land, and that it is in the public interest that such areas, as well as blighted areas, be acquired by eminent domain and made available for sound and wholesome development in accordance with a redevelopment or urban renewal plan, and that the exercise of the power of eminent domain and the financing of the acquisition and preparation of land by a public agency for such redevelopment or urban renewal is likewise a public use and purpose.
      (7) That redevelopment and urban renewal activities will stimulate residential construction which is closely correlated with general economic activity; that undertakings authorized by this chapter will aid the production of better housing and more desirable neighborhood and community development at lower costs and will make possible a more stable and larger volume of residential construction, which will assist materially in maintaining full employment.
      (8) That the necessity in the public interest for this chapter is a matter of legislative determination. [Amended by 1957 c.456 §2; 1979 c.621 §11]

    This is the specific State Law that allows for the acquisition of private properties and their sale or use by another private entity. Kelo didn't make that happen -- it happened about fifty years ago. Kelo won't make its application broader. Only the State of Oregon can do that. Kelo didn't provide for Any of the projects that have been undertaken by this statute. Oregonians did it themselves.

    If Oregonians want to undo it, they have all the tools required to do so. Just like any other State. If a local government does not want to use this law, there's nothing in Kelo that requires it to do so either. No developer has an easier time because of Kelo.

    "The difference is whether one thinks (as many do, and you do not) that there is an appreciable, even radical, difference between "interest" and "use." "

    It doesn't matter what I think of Specific projects, unless they are in My state or in My community. In those instances, I have a direct capacity for involvement in whether or not to pursue them. Another community or State may take a different tack on the matter, as best suits them.

    Here's a little experiment, and it'll help you see why Kelo changes exactly Nothing:

    Find a State or Community in which a proposed development has been disapproved by State or Local action.

    Ask yourself if Kelo will now override that State or Local action, and Require the development to be approved.

    You will find not even one -- not anywhere. Kelo simply doesn't apply to such projects. It does Not override any State or Local prohibition of a development project.

    When you comprehend that simple fact, you will then comprehend why Kelo doesn't set any new precedent, but merely reaffirms the status quo ante.

    The worth of the Public Use within individual projects were, before Kelo, and remain Now subjects for local discussion and approval or disapproval. Kelo has no influence at all and sets no federal mandate on that public policy process.


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