Redstate

By Pejman Yousefzadeh Posted in Law — Comments (34) / Email this page » / Leave a comment »

While I may no longer be in the mood to throw large and heavy objects, I am in the mood to throw around a few arguments. So let's analyze the disastrous decision in Kelo v. City of New London.

As with a previous disastrous decision, Justice Stevens wrote the majority opinion. After reciting the facts of the case, Justice Stevens informs us of the following:

Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future "use by the public" is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.

As for the first proposition, the City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 ("A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void"); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896). Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a "carefully considered" development plan. 268 Conn., at 54, 843 A. 2d, at 536. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute challenged in Midkiff, 467 U. S., at 245, the City's development plan was not adopted "to benefit a particular class of identifiable individuals."

So according to Justice Stevens, we have a "'carefully considered' development plan" before us. Is that really so? I beg to differ:

In Kelo, the attempted exercise of the NLDC's [New London Development Corporation's] eminent domain power was spurred by the decision of Pfizer, Inc. to build a $270 million research facility in the city of New London -- a decision that caused the city of New London to adopt a redevelopment plan that would ultimately affect the land currently owned by Kelo and the other petitioners. But as University of Chicago law professor Richard Epstein (who also wrote a brief on behalf of Susette Kelo and the other petitioners) informs us, "New London still hasn't found any viable projects to put on the nearly 90 acres of prime property it already owns." This -- as law professor Stephen Bainbridge points out -- means that it is not certain what the petitioners' land will be used for. . . .

Does this sound like a "'carefully considered' development plan" to you?

Now, before you read the next bit from Justice Stevens, consider the actual language of the Fifth Amendment to the Constitution of the United States:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(Emphases mine.) All of you out there who mocked originalists and strict constructionists? Look what your mocking hath wrought:

On the other hand, this is not a case in which the City is planning to open the condemned land--at least not in its entirety--to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this "Court long ago rejected any literal requirement that condemned property be put into use for the general public." Id., at 244. Indeed, while many state courts in the mid-19th century endorsed "use by the public" as the proper definition of public use, that narrow view steadily eroded over time. Not only was the "use by the public" test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society.

So "public use" no longer really means "use for the general public." Not "literally," anyways. The above statement eventually leads Justice Stevens to say that

The disposition of this case therefore turns on the question whether the City's development plan serves a "public purpose." Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.

Which then leads to this:

Those who govern the City 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. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

Step forward Justice Clarence Thomas to enhance your already great and woefully underappreciated jurisprudential glory:

There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a "public use." To begin with, a court owes no deference to a legislature's judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the "public purpose" interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature's determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U. S. 573, 589-590 (1980), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U. S. ___ (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, at __; Board of Regents of State Colleges v. Roth, 408 U. S. 564, 576 (1972); Goldberg v. Kelly, 397 U. S. 254, 262-263 (1970).

Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while deferring to the legislature's determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals' traditional rights in real property. The Court has elsewhere recognized "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic," Payton, supra, at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to "second-guess the City's considered judgments," ante, at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners' homes. Something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, ante, at 6, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it.

Note that this passage does nothing to dilute the notion of federalism--a notion that remains dear to my heart. Justice Thomas is not saying that localities cannot make decisions or that political power should pass from their hands. He is saying that they cannot judge "the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property." That is entirely within the province of the courts and it does no violence to the principles of federalism to say so. Indeed, it is more than a little bizarre that the Court in Kelo is giving states and localities a power never intended for them, while in Raich it took away a power that was entirely theirs (the power to decide whether state and local citizens could grow marijuana in their own homes, for their own use and for medicinal purposes without having the marijuana enter the stream of commerce). Would that the granting and grabbing of power have been reversed! Libertarian conservatives like me would have had great cause to rejoice if it was.

Next we have this from Justice Stevens:

To avoid this result, petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use. Putting aside the unpersuasive suggestion that the City's plan will provide only purely economic benefits, neither precedent nor logic supports petitioners' proposal. Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized. In our cases upholding takings that facilitated agriculture and mining, for example, we emphasized the importance of those industries to the welfare of the States in question, see, e.g., Strickley, 200 U. S. 527; in Berman, we endorsed the purpose of transforming a blighted area into a "well-balanced" community through redevelopment, 348 U. S., at 33; in Midkiff, we upheld the interest in breaking up a land oligopoly that "created artificial deterrents to the normal functioning of the State's residential land market," 467 U. S., at 242; and in Monsanto, we accepted Congress' purpose of eliminating a "significant barrier to entry in the pesticide market," 467 U. S., at 1014-1015. It would be incongruous to hold that the City's interest in the economic benefits to be derived from the development of the Fort Trumbull area has less of a public character than any of those other interests. Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose.

The problem with this analysis was nicely explained by the much-missed Tim Sandefur, who in this editorial--which is referenced in my TCS article--nicely showed via example what happens when Justice Stevens's concerns about "blighted" areas is carried too far:

Consider the infamous Poletown case. In the early 1980s, the General Motors Corp. persuaded the city of Detroit -- reeling from recession -- to condemn a neighborhood called Poletown (due to the many Polish immigrants there) and sell it cheap to GM to build an auto factory.

The Michigan Supreme Court held the condemnation was legal: If the government declared a condemnation would benefit the public, the courts would not stand in the way. In a whirlwind of litigation that lasted only a few weeks, neighbors watched as their community was pulverized.

The Poletown decision led to an epidemic of eminent domain abuse. In 1999, the city of Merriam, Kan., condemned a Toyota dealership to sell the land to a BMW dealer instead.

That same year, Bremerton, Wash., condemned 22 homes to resell the land to private developers. In one notorious case, billionaire Donald Trump convinced Atlantic City, N.J., to condemn an elderly widow's home so he could build a limousine parking lot.

Unfortunately, the victims of eminent domain are most often the elderly, the poor and minorities. They lack the money and political power to persuade the government to respect their rights. But corporate lobbyists are very effective at convincing cities to give them someone else's land on the pretense it will create jobs and improve the neighborhood -- especially when it will increase the city's tax base.

And as I argued in my article:

. . . [Petitioner] Susette Kelo has refurbished her home, and her neighborhood -- while depressed in value -- is not "blighted."

As such, the NLDC is not trying to take land for a "public use" such as a public works project, but rather, it is taking land that is not blighted in order to institute vague and unformed businesses and development projects that will generate higher revenues for the city. If this is not an abuse of the eminent domain power, it is difficult to conceive of a situation that is.

But conceive of a situation the Justices did during oral arguments in Kelo. At one point Justice Sandra Day O'Connor asked the attorney representing the city of New London whether eminent domain could be exercised in a situation where the government takes the property of a smaller business in order to give it to a larger one. The city attorney answered that under such a hypothetical, the government could indeed exercise eminent domain. Under this reasoning, not only will you have to lose your homes for development plans that are still up in the air, the local coffee shop may have to give way to a Starbucks, the local bookstore may have to surrender its property to the creation of the latest Borders outlet, and the local video store may have to vacate in favor of the creation of yet another Blockbuster franchise -- all because a Starbucks, a Borders and a Blockbuster could give local governments more tax revenue. In none of these hypothetical situations is the "public use" requirement satisfied. In none of these situations is an "urban blight" finding required. All that is required under the argument of the New London city attorney is that a local government must find that a current and existing business would yield less tax revenue than a potential incoming business would, and that government could exercise its power of eminent domain.

Depressed yet? You should be.

Now the following paragraph by Justice Stevens is very interesting:

It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use.

Put aside for a moment my belief that such a one-to-one transfer of property has indeed occurred, or that at the very least, there is more of a one-to-one element to the transfer of property in Kelo than Justice Stevens would care to admit. Read that paragraph again. Then read the following in Justice Kennedy's concurrence:

My agreement with the Court that a presumption of invalidity is not warranted for economic development takings in general, or for the particular takings at issue in this case, does not foreclose the possibility that a more stringent standard of review than that announced in Berman and Midkiff might be appropriate for a more narrowly drawn category of takings. 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. Cf. Eastern Enterprises v. Apfel, 524 U. S. 498, 549-550 (1998) (Kennedy, J., concurring in judgment and dissenting in part) (heightened scrutiny for retroactive legislation under the Due Process Clause). This demanding level of scrutiny, however, is not required simply because the purpose of the taking is economic development.

Will Baude notes the significance quite clearly in this post--of which he should not be embarrassed about, I might add! There is play in the joints and the road is not foreclosed to further litigation that might help protect economic rights in general and property rights in particular. Such litigation would ideally marginalize the ruling in Kelo and would have the specific effect of making it harder to find "blight" and making the finding of a "'carefully considered' development plan" more stringent. It would also more readily recognize the transactions that are being sought in Kelo as one-to-one transfers. And as for the political fallout, well, I am perfectly on board with this plan, along with a concerted effort to point out that it was the "liberal" Justices who came out in favor of a decision that at the very least takes giant steps in the direction of making your home no longer your castle.

All of these plans are worth following up on. There are surely others as well. For now, however, let it suffice to say that this was a bad day for those who hold property rights in high regard. A very bad day indeed.