Supreme Court Continues to Avoid Eminent Domain Cases Post Kelo

In his 2005 concurrence in the eminent domain case Kelo v. City of New London, Supreme Court Justice Anthony Kennedy argued that while the local officials in Connecticut did possess the lawful authority to seize private property and then hand it over to a private developer for purposes of so-called economic revitalization, the government could not simply wield this power any time it wanted on behalf of its politically-connected friends. "Transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits," he wrote, "are forbidden by the Public Use Clause." One way to identify whether or not "favored private entities" are getting rich illegally off state power, Kennedy explained, was to make sure the main private beneficiary of an eminent domain taking was "unknown at the time the city formulated its plans."

On Monday, the Supreme Court had a prime opportunity to give additional force to Kennedy's words and instead declined to review a glaring case of eminent domain abuse from Guam. At issue in Ilagan v. Ungacta was a land seizure by the government, ostensibly for "public" purposes, but which in fact appears to have been carried out for the benefit of one person and one person only, the local mayor, who owned a residential lot that happened to lack access to a road. Under the eminent domain proceedings, the mayor's neighbor lost a portion of his property and the mayor gained road access.

It's hard to imagine a clearer example of the government exploiting its eminent domain powers on behalf of a "favored" private entity, but apparently there were not even four justices—the minimum number of votes needed to hear a case—willing to take a closer look into the matter.

Nor is this the only time in recent years the Supreme Court has refused to hear an eminent domain case that tests Kennedy's Kelo opinion. In 2010, the Court declined to hear New York property owner Nick Sprayregen's powerful challenge to the Empire State's use of eminent domain on behalf of Columbia University. Like the controversy from Guam, the Columbia case offered a clear example of the government unleashing its bulldozers on behalf of a politically-connected private entity.

The ruling in Kelo was bad enough, but allowing these sorts of naked government land grabs to stand threatens to render the Takings Clause a dead letter.