Our Amicus Brief Urging the Supreme Court to Hear Case on Overruling Kelo v. City of New London

The brief is on behalf of the Cato Institute and myself.

Susette Kelo's famous "little pink house,"which became an iconic symbol of the Kelo case. (Institute for Justice)

 

Last month, I wrote about Bowers v. Oneida County Industrial Development Agency, a case in which the Institute for Justice seeks to  persuade the Supreme Court to overrule Kelo v. City of New London (2005). Kelo was the controversial case in which the  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.

Today, the Cato Institute and I filed an amicus brief urging the Court to take the case. Here is a summary of our argument that I prepared for the Cato website:

Bowers Development, LLC was under contract to purchase land in Utica, New York, planning to construct a medical office building.  Central Utica Building, LLC, a business competitor to Bowers—asked the Oneida County Industrial Development Agency ("OCIDA") to condemn the land so that Respondent could build a parking lot for a medical office building on adjoining property. Because Central Utica's project might stimulate the local economy, and improve the community, OCIDA agreed to condemn the land and give it to Central Utica. Bowers objected to this private-to-private taking as beyond the scope of the Fifth Amendment's Public Use Clause, which only allows the use of eminent domain to take property for a "public use."  A New York state court upheld the taking because it was "rationally related to a conceivable public purpose," namely "mitigating parking and traffic congestion." . The Appellate Division based its ruling in part on Kelo v. City of New London, 545 U.S.  (2005).

Kelo is one of the most severely flawed and much-criticized decisions in modern Supreme Court history. The Court's holding that private "economic development" qualifies as a "public use" sufficient to authorize the use of eminent domain to take private property is deeply at odds with text and original meaning, and based on a variety of other errors. Justice John Paul Stevens, author of the Court's majority opinion in Kelo, later admitted its reasoning was based, in part, on an "embarrassing to acknowledge" error in interpreting previous precedent.

In addition, Kelo has generated widespread confusion in state and lower federal courts because of its lack of clarity on what qualifies as a "pretextual" taking that remains invalid even under the Court's otherwise highly deferential approach to review of condemnations under the Public Use Clause.

Part I outlines the confusion Kelo has created in the lower courts. State and federal courts have adopted five distinct approaches to determining what qualifies as a pretextual taking. Some emphasize the subjective intentions of the government officials who decided to condemn the property; some focus on the distribution of benefits from the condemnation; some on whether there is a private beneficiary whose identity is known in advance; some on the extent of the planning process behind the taking; and some adopt a posture of near-total deference.

Part II explains how this case is an excellent vehicle for resolving the confusion. All four of the possible indicia of a pretextual taking identified by lower courts are present: dubious intentions, a highly skewed distribution of benefits, a known private beneficiary, and the absence of any extensive planning process. Thus, the Court can use the case as an opportunity to consider the relative significance of these factors.

Part III outlines the reasons why the Court should take this opportunity to overrule Kelo. The ruling is deeply at odds with the text and original meaning of the Public Use Clause. It also includes other serious errors in reasoning, including a crucial one admitted by Justice Stevens, author of the Court's majority opinion.

Overruling Kelo would be consistent with the Supreme Court's precedent on criteria for reversing previous decisions, as outlined in rulings such as Knick v. Township of Scott 2019). Reversing Kelo would also help resolve the confusion engendered by the ruling's vague criteria for determining what qualifies as a pretextual taking.

The Supreme Court should grant the petition, and overturn Kelo. Even if the Court does not wish to reverse Kelo, it should still grant the petition to clarify the proper standard for pretextual takings.

The briefly is partly based on arguments developed in my book about the Kelo case, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.