In
Kelo v. City of New London, the Supreme Court of the United States was faced with the following question:
The question presented is whether the city's proposed disposition of this property qualifies as a "public use" within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.
The standard of review for such question is:
Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the "great respect" that we owe to state legislatures and state courts in discerning local public needs. See Hairston v. Danville & Western R. Co., 208 U. S. 598, 606-607 (1908) (noting that these needs were likely to vary depending on a State's "resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people"). For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.
The petitioners urged the Court adopt a stricter standard:
To avoid this result, petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use.
Citing a century of precedent, the majority properly rejected the Petitioner's call. I will discuss this on the flip.
The disposition of this case therefore turns on the question whether the City's development plan serves a "public purpose." Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.
In Berman v. Parker, 348 U. S. 26 (1954), this Court upheld a redevelopment plan targeting a blighted area of Washington, D. C., in which most of the housing for the area's 5,000 inhabitants was beyond repair. Under the plan, the area would be condemned and part of it utilized for the construction of streets, schools, and other public facilities. The remainder of the land would be leased or sold to private parties for the purpose of redevelopment, including the construction of low-cost housing.
The owner of a department store located in the area challenged the condemnation, pointing out that his store was not itself blighted and arguing that the creation of a "better balanced, more attractive community" was not a valid public use. Id., at 31. Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area "must be planned as a whole" for the plan to be successful. Id., at 34. The Court explained that "community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis--lot by lot, building by building." Id., at 35. The public use underlying the taking was unequivocally affirmed:
"We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive... . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way." Id., at 33.
In Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), the Court considered a Hawaii statute whereby fee title was taken from lessors and transferred to lessees (for just compensation) in order to reduce the concentration of land ownership. We unanimously upheld the statute and rejected the Ninth Circuit's view that it was "a naked attempt on the part of the state of Hawaii to take the property of A and transfer it to B solely for B's private use and benefit." Id., at 235 (internal quotation marks omitted). Reaffirming Berman's deferential approach to legislative judgments in this field, we concluded that the State's purpose of eliminating the "social and economic evils of a land oligopoly" qualified as a valid public use. 467 U. S., at 241-242. Our opinion also rejected the contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. "[I]t is only the taking's purpose, and not its mechanics," we explained, that matters in determining public use. Id., at 244.
In that same Term we decided another public use case that arose in a purely economic context. In Ruckelshaus v. Monsanto, Co., 467 U. S. 986 (1984), the Court dealt with provisions of the Federal Insecticide, Fungicide, and Rodenticide Act under which the Environmental Protection Agency could consider the data (including trade secrets) submitted by a prior pesticide applicant in evaluating a subsequent application, so long as the second applicant paid just compensation for the data. We acknowledged that the "most direct beneficiaries" of these provisions were the subsequent applicants, id., at 1014, but we nevertheless upheld the statute under Berman and Midkiff. We found sufficient Congress' belief that sparing applicants the cost of time-consuming research eliminated a significant barrier to entry in the pesticide market and thereby enhanced competition. 467 U. S., at 1015.
Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the "great respect" that we owe to state legislatures and state courts in discerning local public needs. See Hairston v. Danville & Western R. Co., 208 U. S. 598, 606-607 (1908) (noting that these needs were likely to vary depending on a State's "resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people"). For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.
The Majority found that the New London plan passed constitutional muster:
The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including--but by no means limited to--new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.
Personally, I don't see how the Court could have reached a different result. Here is what the dissent said:
Where is the line between "public" and "private" property use? We give considerable deference to legislatures' determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning. See Cincinnati v. Vester, 281 U. S. 439, 446 (1930) ("It is well established that ... the question [of] what is a public use is a judicial one").
Fair enough. But what of the deference? Why is this development beyond the pale? The dissent argues:
Our cases have generally identified three categories of takings that comply with the public use requirement, though it is in the nature of things that the boundaries between these categories are not always firm. Two are relatively straightforward and uncontroversial. First, the sovereign may transfer private property to public ownership--such as for a road, a hospital, or a military base. See, e.g., Old Dominion Land Co. v. United States, 269 U. S. 55 (1925); Rindge Co. v. County of Los Angeles, 262 U. S. 700 (1923). Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public's use--such as with a railroad, a public utility, or a stadium. See, e.g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407 (1992); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30 (1916). But "public ownership" and "use-by-the-public" are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have allowed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. See, e.g., Berman v. Parker, 348 U. S. 26 (1954); Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984).
Understand what the dissent concedes here. The type of taking in this case is permitted by the Constitution. So clearly the issue is not the type of taking, but rather whether there is something about THIS taking that makes it unconstitutional. What is the dissent's argument?
It presents an issue of first impression: Are economic development takings constitutional? I would hold that they are not.
This is simply false. They are Constitutional as found by the Court. The dissent accepts this implicitly in the very next line:
We are guided by two precedents about the taking of real property by eminent domain. In Berman, we upheld takings within a blighted neighborhood of Washington, D. C. The neighborhood had so deteriorated that, for example, 64.3% of its dwellings were beyond repair. 348 U. S., at 30. It had become burdened with "overcrowding of dwellings," "lack of adequate streets and alleys," and "lack of light and air." Id., at 34.
So much for a case of first impression. But the dissent would argue that a finding of "harm" is required to make such a taking Constitutional. This is sophistry. A finding of harm by whom? The majority makes clear that addressing the problem of unemployment, etc., constitutes public use. How could the non-finding of "harm" change the character of the use? It is a completely absurd proposition. How is the condemnation for a "road" different? Surely there is no need to find a "harm" there? What the dissent is proposing is that the legislature's determination of the public's interest is not to be trusted. So much of strict construction and avoidance of judicial activism.
The dissent acknowledges the inconsistency and justifies itself in this way:
In those decisions, we emphasized the importance of deferring to legislative judgments about public purpose. Because courts are ill-equipped to evaluate the efficacy of proposed legislative initiatives, we rejected as unworkable the idea of courts' " 'deciding on what is and is not a governmental function and ... invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.' " Id., at 240-241 (quoting United States ex rel. TVA v. Welch, 327 U. S. 546, 552 (1946)); see Berman, supra, at 32 ("[T]he legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation"); see also Lingle v. Chevron U. S. A., Inc., 544 U. S. __ (2005). Likewise, we recognized our inability to evaluate whether, in a given case, eminent domain is a necessary means by which to pursue the legislature's ends. Midkiff, supra, at 242; Berman, supra, at 103.
Yet for all the emphasis on deference, Berman and Midkiff hewed to a bedrock principle without which our public use jurisprudence would collapse: "A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void." Midkiff, 467 U. S., at 245; id., at 241 ("[T]he Court's cases have repeatedly stated that 'one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid' " (quoting Thompson v. Consolidated Gas Util. Corp., 300 U. S. 55, 80 (1937))); see also Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403, 417 (1896). To protect that principle, those decisions reserved "a role for courts to play in reviewing a legislature's judgment of what constitutes a public use ... [though] the Court in Berman made clear that it is 'an extremely narrow' one." Midkiff, supra, at 240 (quoting Berman, supra, at 32).
Ignored by the dissent is the finding of a "justifying public purpose." What the dissent proposes, implicitly, is to NOT defer to the legislature:
The Court's holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society--in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman, supra, at 28-29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use.
This is sheer nonsense. It posits that public use can only be effectuated through elimination of a "harm" attached to the condemned property. It simply has no support in the jurisprudence or in common sense. Indeed, it is the heart of the dangerous jurisprudence of the narrow readings of the civil rights amendments and laws by the Conservative wing of the Court. Always these Conservatives demand "findings" of past institutional discrimination by the state. Always, the Conservatives seek to limit the power of the State to act for the public good. This is more of the same. It is bad stuff.
I believe that the Majority properly applied existing jurisprudence in a principled AND properly progressive way.
It is no accident that the Court split as it did.