The Volokh Conspiracy
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Institute for Justice Petitions Supreme Court to Take Case Seeking to Overrule Kelo v. City of New London
Kelo is the 2005 ruling in which the Supreme Court held that the government can take property for private "economic development.""
Today, the Institute for Justice filed a cert petition urging the Supreme Court to hear Bowers v. Oneida County Industrial Development Agency, a case in which IJ seeks to overrule Kelo v. City of New London (2005). Kelo is the controversial case in which the Supreme Court held that the government could use eminent domain to take property in order to promote private "economic development." Although the Fifth Amendment states the the government may only take private property for "public use," a narrow 5-4 Supreme Court majority built on earlier precedents to rule that virtually any potential public benefit qualifies as such. The Court also ruled the government need not prove that the supposed public benefit will actually materialize. In the Kelo case itself, it never did, and the condemned property ended up being used mainly by feral cats.
The Institute for Justice is, of course, the public interest firm that represented the property owners in the Kelo case. I wrote about the case, its development, and why the Court got it wrong, in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.
Here is an excerpt from IJ's description of the Bowers case:
Bryan Bowers and his business partner Mike Licata build things. And they pride themselves on building things the people in their upstate New York community actually want and need. That is what led them to buy a plot of land across from a new hospital in Utica, New York: They had heard from doctors in the area that they would happily rent space from a Bowers building if one went up.
Unfortunately, they weren't the only ones with plans for a medical office building near the hospital—or with plans for their newly acquired land. A different group of doctors had formed a private company they called Central Utica, LLC, that had plans for a building next door. After Bryan and Mike signed a contract to buy their new land, Central Utica announced that it wanted Bryan and Mike's land, too—to use as a private parking lot for its building.
Two different people wanting the same thing is nothing new, whether it's toddlers with toys or private businesses with land. The difference is that this dispute happened in New York, where local and state officials sometimes behave like spoiled children.
Central Utica wrote a letter to a local government agency, the Oneida County Industrial Development Agency, asking it to take Bowers' land using eminent domain. Shockingly, the county agreed. In the county's telling, the new private office building would create jobs and economic growth, and that was reason enough to invoke the power of eminent domain. (Bryan, of course, proposed to build an office building that would also have created jobs, and the location was already surrounded by literally thousands of parking spots, including a brand-new multi-level garage, but the county didn't seem troubled by that.)
That may seem like a flimsy basis for taking away someone's private property, but in New York, it's standard procedure. New York is the nation's leading abuser of eminent domain, and it is a stark example of the excesses of one of the Supreme Court's most reviled decisions: Kelo v. City of New London….
Against this backdrop, the condemnation of Bryan's property is just more of the same. Sure, a private business went to the government and asked to be given someone else's private property—but that's not unusual in New York. While most states would have a problem with that, in New York, it took the court all of a paragraph to conclude that the taking was constitutional. If it weren't enough that the new private office building would create jobs, the court identified another secondary benefit that would justify the condemnation: The public, it said, could use the new parking lot at night, when its new private owner didn't need it.
Of course, that isn't true. Once the new owners took over the land, they immediately put up signs making clear that the general public wasn't allowed….
But in New York, that doesn't matter. It doesn't matter whether the public can actually use the land that's being taken, and it doesn't matter that in reality the land is a private parking lot in a sea of public parking spaces—just like it didn't matter in Kelo whether the government would actually build anything at all. All that matters is whether the government can imagine a good reason for the taking.
A rule that says the government can take your property whenever it can imagine a benefit to doing so is just a rule that says the government can take your property whenever it wants to. It will be up to the Supreme Court to decide whether the Constitution demands more than that.
Four current Supreme Court justices have previously expressed interest in overruling or at at least revisiting Kelo. Unlike the recent "passive park" case, this case seems like a good vehicle for doing so. It features a dubious condemnation for private development, and one that also raises a number of issues that could help clarify Kelo's extremely vague standards for what qualifies as a forbidden "pretextual" taking. If the Court doesn't want to overrule Kelo outright, they should at least clarify and strengthen the pretextual taking rules.
As IJ notes, many states have passed eminent domain reform legislation since Kelo or repudiated it as a standard for the public use clauses of their state constitutions. But, as described in my book, many of the reform laws are weak, and still permit a wide range of abusive takings.
I will likely have more to say about this case in future posts.
NOTE: I have worked with the Institute for Justice on various other property rights issues over the years, but have no involvement in this case. However, I may file an amicus brief urging the Supreme Court to hear it.
