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Thursday, June 23, 2005
Planning v. Pretext
Kelo | Posted by Nicole Garnett at 12:00 PM
I must say that I am shocked that the Court was this divided -- I suspected it would be 8-1 or 7-2. I am not surprised that the Court relied upon the extensive planning by the city. I wonder, though, whether lower courts will start second-guessing takings where there is not a "plan" in place. (Stevens cites the 99 Cents Only case in a footnote.)
If courts do start requiring a plan, could this be a small victory for landowners? Could a planning requirement limit rent seeking by the would-be beneficiaries of takings?
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Comments
I'd be curious as to someone's take on Stevens's cryptic footnote 18. My first-blush suspicion was that the last sentence of footnote 17, regarding other constitutional guarantees, had previously been in the text and, when it was shunted to note 17, note 18 was inadvertently left hanging. I say that, though, without having read Panhandle Oil. In any event, I don't see the relevance of the parenthetical ("The power to tax is not the power to destroy while this Court sits") in the existing context. Surely, if Stevens wanted a citation for the proposition that the Court can address a specific fact pattern when and if it arises, he could have done better than a cf. cite to a 77-year-old dissent.
I know this is sort of a ticky-tack question, but I'm curious (and notes 17 and 18 suggest just at least some limiting principle on public use). In the end, although I sympathize with the petitioners and the dissenting perspective, the majority is manifestly correct on the existing law. Thus, while the policy question can be argue dthe policy until the cows come home, there's just not much to discuss on the legal merits of the decision.
Posted by: eric at June 23, 2005 12:30 PM
I too believe that the majority opinion, and to some respects the Kennedy concurrance point to the need for the city/state to follow some sort of plan and "carefully consider" the taking. But even that standard is going to be hard to defeat.
The Kennedy concurrence also points to the possiblity of a heightened level of review. I wonder if Justice O'Connor had included that as part of her dissent, if Kennedy might have switched sides and O'Connor's opinion would be the majority. I find it troubling that this aspect of property rights is not accorded a heightened level of review on par with other individual rights found in the Constitution.
I fail to see any distinction on substantive grounds between a heightened level of review for abridgment of, say, the right to be free of unreasonable searches and seizures and the right to not have one's property taken for "public purpose."
Posted by: Matt Johnston at June 24, 2005 03:25 PM