Out of Control Policy Blog

Kelo Smackdown: IJ vs. APA

E&E TV's On Point recently aired a debate between Institute for Justice lead attorney Scott Bullock and American Planning Association executive director Paul Farmer on the Supreme Court's Kelo vs. New London decision on eminent domain. Here's an excerpt:

    [Host] Brian Stempeck: Paul, what's your reaction to the case? The American Planning Association was one of the groups that sided with the city of New London. Is what Scott's saying true? Could a shopping mall developer, can they now come in and take over a church?

    Paul Farmer: I don't think what he's saying is true at all. I think that it's a vast overstatement of what the Supreme Court said. I think you need to read the majority decision. We don't believe it changed anything. People's property was no more at risk the day after the decision than the day before the decision. This is something that's gone back 200 years in practice. It's gone back in legal precedent for over a hundred years. The court had been ruling that property could be taken for economic development purposes long before they ruled that it could be taken in conditions of blight, which was 1954 in Berman v. Parker. The economic development cases go back way before that. We believe, and we said this in our friend of the court brief that this really is an issue that ought to be decided at the state level and the local level and we see that activity going on now. The Supreme Court simply said they weren't going to intervene so that federal courts became the places where these decisions were made. These decisions ought to be left close to home, close to the voters. We believe that a very robust citizen participation process is the best safeguard to see that any governmental authority is used correctly and we believe that's the case with eminent domain. We don't think that we need sweeping new laws. We didn't need a sweeping new law from the Supreme Court. We didn't get it. We do believe that many state laws can be improved. We did a lot of work for seven years looking at state enabling laws in a whole variety of ways and that information is free and available on the Web. We think there's some states that have very good state enabling laws regarding the use of eminent domain and that power. We think there are many that could be improved. So we stand ready to assist in a reasoned discussion of how to improve those.

    Brian Stempeck: Scott, the city's basic argument in this case was that this is an area that's pretty underprivileged economically. The unemployment in the area was twice the average of the rest of the city. Why shouldn't city planners have the right to go in there and say we have a new development that's going to add a thousand new jobs? What's wrong with that argument?

    Scott Bullock: Well it's fundamentally un-American for the government to take property from one private owner and hand it over to another private owner just because the government happens to prefer that new owner and thinks that new owner would make more productive use of the land than the current owners would. There's nothing wrong with governments using whatever incentives they wish to encourage economic development and that's a policy choice that cities can make and choose to make. But when eminent domain is involved there are specific limitations upon that in the Constitution. The Constitution says very clearly private property shall not be taken for public use without just compensation. So there's a constitutional limit. Unfortunately, the Supreme Court did not apply at that constitutional limit. That's why it's now up to state courts, why it's up to state legislators to do this. You know the ironic thing about the situation in new London, and it's true in many of these projects, New London has ample land available in the Fort Trumbull area to do development projects. They have twice the land area available now to do development projects than New York has to rebuild the World Trade Center. The people who live there have about an acre and a half total of land. They can do development, but they can still respect the rights of these people and that's true in just about every situation I've seen.

You can watch the debate here, or view the transcript here.

Leonard Gilroy is Director of Government Reform


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