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Sunday, June 26, 2005
Larry Tribe on Justice O'Connor in Midkiff and in Kelo
Kelo | Posted by Marty Lederman at 08:27 AM
Professor Laurence Tribe, who argued Midkiff in support of the Hawaii Housing Authority's land reform statute, writes with this observation about Justice O'Connor's contrasting opinions:
"In arguing Midkiff, at the level of formal doctrine I urged a standard identical to that for substantive due process challenges; but fearing precisely the kinds of identity-attacking and/or community-disintegrating moves that some think New London made in Kelo, I emphasized both in my brief and in oral argument the strong support in historical tradition and in economic utility for the state's comprehensive scheme for transforming oligopolies with respect to residential property in key areas of the state into well-functioning real estate markets -- thereby arguing that the state law at issue would survive not only rationality review but any plausibly heightened standard, as well. Although Justice O'Connor's opinion for the Court in Midkiff recited some of that material, her opinion was painted with a surprisingly broad brush -- and I was only mildly surprised in Kelo to see her retrace some of her steps from Midkiff and retract the most sweeping of the statements to be found there. Adding the Kennedy Kelo concurrence to the O'Connor Kelo dissent yields a 5-4 majority for at least trying to develop workable criteria for ferreting out corrupt or otherwise pretextual takings."
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Comments
I have been doing some reasearch in hopes of writing an article on the New London case, and I was amazed to read the Midkiff decision, and to realize that Chief Warren Burger and Associate William Rehnquist agreed with the unanimous opinion, written by Justice O'Connor, that stated baldly "The 'public use' requirement is thus coterminous with the scope of a sovereign's police powers." 487 US at 240.
It seems to me that nobody is arguing that, for instance, prohibiting nondangerous residential uses in a particular zoning district would be within a city's police powers. Thus, ending that use for planning purposes, with the use of the eminent domain power, would be consistent with the unanimous court's opinion in Midkiff.
Although I represent municipalities, I really would not have much problem with a decision that backed off Midkiff and said "No, unless the public is using the property, you can't use eminent domain." But that would be a big change from a century's worth of jurisprudence, and those who claim that some big "new" rule came down this month are either misinformed or disingenuous.
Posted by: Ron at July 1, 2005 12:54 PM