« Planning v. Pretext | Main | Observations on Kelo »
Thursday, June 23, 2005
Kelo comments
Kelo | Posted by Thomas Merrill at 02:29 PM
It is interesting to compare the Supreme Court's takings opinions from 1987 -- the first year of the Rehnquist Court -- with the takings opinions of 2005 -- which many have assumed will be its last. In 1987, the Court decided several major decisions that expanded the Takings Clause and seemed to foreshadow an even more expansive future. I am thinking of First English, which held that temporary takings must be compensated, Nollan, which applied the unconstitutional conditions doctrine to exactions, and Hodel v. Irving, which held that abrogation of the "right to inherent" can be a taking. In 2005, we have three major takings decisions, each of which goes against the property owners and in favor of the government. It is interesting to speculate about what caused the "takings revolution" of the Rehnquist Court to fizzle out. It appears that Lucas, decided in 1992, was the high water mark. It has been largely downhill since then. One explanation is Justice Kennedy. He has never been as gung ho on takings issues as Rehnquist, Scalia, and O'Connor. But for whatever reasons, the Takings Clause is now being interpreted by the "Stevens Court," not the Rehnquist Court, with Kennedy supplying the critical fifth vote.
As to Kelo, I think the case sends just about the right message. The Court is not prepared to adopt a per se rule against takings for economic development. But the amber light is flashing. Stevens and Kennedy seem to say that careful planning and lots of community input are important in sustaining the use of eminent domain for economic development. Kennedy, in a manner analogous to his Veith concurrence last term, warns that he may come up with a theory in the future which would allow him to go the other way -- so watch out! The
Court is closely divided 5-4, which means another, more egregious example of condemn-and-retransfer might get struck down. So the message to state courts is: go ahead and use eminent domain for economic development, but please try to take property rights more seriously in the future. I think this is exactly the right message. it preserves federalism in this area, but tries to re-shape values and attitudes to be less casual about overuse of eminent domain, which can be a wrenching experience for people. The grand irony in this is that O'Connor's opinion in Hawaii Haousing auth. v. Midkiff is largely responsible for the "anything goes" attitude toward eminent domain in many states. She was all about rational basis tests and deferring to local legislatures there. Now she is the one dissenting! I especially like the line about the States playing many roles in our system of dual sovereignty, but compensating for our refusal to enforce federal constitutional rights is not one of them. Tell that to the 11th Amemdment losers!
Another thought on Kelo. The case proves again how important the facts can be in selecting decisions to go to the Supreme Court. Kelo may have been a clean case, in the sense that there was no argument based on blight, just economic development. But it was far from being the worst example of eminent domain abuse. What the IJ needed was a case in which it looked like some politically unaccountable development authority had sold out to a private developer or big box store. I think a case with such facts, in today's political environment, would have flipped the result.
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Comments
I didn't see the majority really putting any limitations whatsoever on Takings except an obvious motive of private profit, but I think that if they were less confused, they might have imposed one of the two below. Do you agree?
A. Takings for private use are okay if they are supposed to increase the market value of the property.B. Takings for private use are okay if they overcome a hold-out problem.
I didn't see anything which actually required even (A)--e.g., a city could even say that the value of the property will fall after the taking, but it will creates jobs, or diversity the city economy, or add needed housing, shops, or parking lots, etc.
Stevens cryptically alluded to development plans, and maybe he was thinking of B. At any rate, that gives hope for the future.
I say more on this at:
http://www.rasmusen.org/x/archives/699
Posted by: Eric Rasmusen at June 26, 2005 12:30 PM