On Tuesday, the U.S. Supreme Court heard arguments in the eagerly-anticipated Kelo vs. New London eminent domain case. By most accounts, the tone of the hearing left the impression that the Court was unlikely to step in and overturn precedent, much to the delight of those backing the city's pro-eminent domain position. Property-rights advocates will likely have to regroup and fight another day.
According to the New York Times:
- The justices were not unsympathetic to the homeowners' plight, but several said they saw no way of adopting Mr. Bullock's position without overturning decades of precedents that had endorsed the use of eminent domain for slum clearance, rail lines and public utilities. "The rationale for this is essentially the rationale for the railroads, the public utilities, and so on: there isn't another practical way to do it," Justice David H. Souter said.
Reason's own Sam Staley offered this response:
- "The Supreme Court may not want to overturn its previous rulings, but it needs to protect the homeowners here. If a city is allowed to take property just because it can make more money by giving it to someone else, the deed to your home or land won't be worth the paper it's printed on. New London's attorneys showed what a slippery slope this is when they admitted they'd condemn a Motel 6 and give the land to the Ritz Carlton if they could. When property rights are meaningless, the government can and will go after you, Motel 6 and anybody else that stands between it and more revenue."
Sam also notes that the Institute for Justice (the law firm representing the property owners) asked the Court for what seems like a very reasonable restraint on the power of eminent domain: requiring that the benefits from economic development projects be "reasonably foreseeable." This would require cities to establish some baseline standards to demonstrate that the economic benefits are likely to come about. This would be far from the victory that property-rights advocates are seeking, but it would at least place some boundaries around the eminent domain power and likely stave off the most egregious condemnation cases.
We'll have to wait and see what happens this summer when the Court's decision is rendered. In the meantime, the blog world has been weighing in on the Kelo hearing. Here's a sampling:
- New London = Old Moscow from Professor Bainbridge (more from the Prof here).
- JurisPundit doesn't think things look as bad for the Kelo plantiffs as reports would suggest.
- One of the writers at Ex Post takes the temperature of the Court and opines that the Court probably wouldn't have taken the case had there not been a potential to narrow the boundaries established in previous eminent domain cases.
- Marty Lederman at SCOTUSBlog isn't betting on the homeowners' side, but finds a silver lining: that this case may open the door to reconsidering the traditional measures of just compensation under the Fifth Amendment.
- Orin Kerr at the Volokh Conspiracy poses a "simple" question about the Takings Clause, though judging by the comments the answer isn't that clear cut.
- Pejman Yousefzadeh weighs in on Kelo and outlines a framework for legislation to curb the abuse of eminent domain.
UPDATE: David Sucher at City Comforts Blog makes an interesting suggestion:
- I'll suggest a solution, (sorry about the legal code words) which cuts through a lot of issues in eminent domain and zoning both. It is pretty simple. Extend to property rights the protections (to some degree) given to civil rights and liberties when faced with governmental intrusion -- i.e. some sort of "least intrusive means" test.
While government can interfere with your rights when it comes to limiting, say, free speech because of some conflict with, say, public safety in a theater. But govt. must tailor (and that is the word commonly used) the remedy to the "least intrusive means" of solving the specific problem while preserving as much of the underlying civil right/liberty as possible.
SCOTUS long ago moved away from such a limitation on government power and gave great deference to legislative authority when it comes to regulating property rights. "Public policy is what we say it is." This is an apt time to reconsider that balance and nudge things back in the other direction. The problems we face in land use these days do not stem from lack of governmental power but simply from
1. fundamental disagreements about how society should be formed and
2. insufficient human wisdom.
More regulatory power solves neither problem.
That last thought is powerful and one to savor.