Eminent Domain for the 21st Century
Below the fold: first, a round-up from some of the blogs, legal and political, and then my reaction. Fair warning before you click through: this decision worries the hell out of me.
Todd Zywicki at Volokh is appalled:
"I thought the purpose of the Bill of Rights was to create rights that would be protected from the government, so that we wouldn't have to rely on the honor system of the government to do the right thing, but had rights that would be enforced.He notes that Clarence Thomas's dissent points out the obvious: that it won't be the rich and powerful who have their homes repossessed. I reproduce this last primarily because I'm trying to figure out why exactly right-leaning blogs like Thomas so much; here, I agree with him entirely. Nicole Garnett at ScotusBlog praises Thomas's dissent as another instance where, as a conservative, he stands up for the little guy.
The conservatives of RedState are, as is their wont, alteratively philosophical and livid. Livid diarist Pejman Yousefzadeh, who has been following this case rather closely, quotes from an article he wrote for TechCentralEtc.:
As such, the NLDC is not trying to take land for a "public use" such as a public works project, but rather, it is taking land that is not blighted in order to institute vague and unformed businesses and development projects that will generate higher revenues for the city. If this is not an abuse of the eminent domain power, it is difficult to conceive of a situation that is.[...]Under this reasoning, not only will you have to lose your homes for development plans that are still up in the air, the local coffee shop may have to give way to a Starbucks, the local bookstore may have to surrender its property to the creation of the latest Borders outlet, and the local video store may have to vacate in favor of the creation of yet another Blockbuster franchise -- all because a Starbucks, a Borders and a Blockbuster could give local governments more tax revenue. In none of these hypothetical situations is the "public use" requirement satisfied. In none of these situations is an "urban blight" finding required. All that is required under the argument of the New London city attorney is that a local government must find that a current and existing business would yield less tax revenue than a potential incoming business would, and that government could exercise its power of eminent domain.
The biggest surprise for SCOTUS-watchers seems to be that O'Conner fell within the 4-party dissenting group. Not only does she tend to vote with the majority, but she also authored an important opinion on eminent domain, which her dissent reverses, according to Ilya Somin at ScotusBlog's discussion forum on the decision. He also suggests that the court is here deferring to an idea of local expertise that is inconsistently applied:
"Stevens and the other justices in the majority routinely vote to "second-guess" political decisions on issues like abortion, the death penalty, police searches, censorship of pornography, and privacy rights. While Stevens is probably right to assume that judges do not have as much expertise as elected officials do on takings, it is also likely that they have less expertise than legislatures do on most of the other issues mentioned above."I'm not entirely sure I agree with the last sentence--do state legislatures really have more reasonable expertise on privacy rights than SCOTUS does?--but the inconsistent exercise of judicial authority does seem problemative.
On the other side, Thomas Merrill at ScotusBlog suggests that the majority opinion should be read as a message to state courts that they should
go ahead and use eminent domain for economic development, but please try to take property rights more seriously in the future.Merrill thinks that this decision preserves "federalism in this area" while trying to "re-shape" attitudes about the casual use of eminent domain. Similarly, commenters on the thread attached to a (livid, horrified) post by Jammer at the TPMcafe defend the idea that local communities should be able to control, via elected officials, the shape of their community.
Scott Lemieux at Ezra Klein's blog offers a more forthright justification:
I am sympathetic to the defendants, who were forced to sell their property for what seems to me like a boondoggle, and I understand what O'Connor means when she suggests that "for public use" might as well be deleted from the Fifth Amendment. But once the courts start making determinations about what constitutes the "public interest," the Court becomes an all-purpose economic regulator, and history makes it quite clear that this is a state of affairs that is not good for democracy or for progressive interests in the long run. [...]Politics, huh? The Westside Stadium was beaten, I suspect, in large part because of Sheldon Silver's ability to pull the 9-11 card in his favor: how much less sympathetic would press coverage for a hold-out "my district needs this money" representative from a less prestigious district have been? It doesn't seem likely that poorer districts--and, let's say it, neighborhoods whose residents have brown skins--will have that kind of political pull.
The lesson here, again, is the the Constitution does not provide a remedy for every bad public policy. Combining upper-class tax cuts with increased pork-barrel spending, like the current administration is doing, is awful public policy, but it's constitutional, and the same goes for Robert Moses' grandiose road-building schemes. You beat them the way the West Side Stadium was beaten; through politics. Expecting the courts to protect poor property owners by determining which policies are legitimate public interests is a sucker's bet.
This is definitely a case where the conservatives stick to the principle of property rights and the liberals are torn their desires to improve communities by rational planning and their desires to ensure the rights of the more vulnerable to hang onto what they've managed to acquire. Atrios's ambivalence is telling:
Yes, this is a bad decision, but we must think of what the alternative might have been. I don't know what was in the hearts of the justices who ruled the way did, they may be fully on board this apparent belief in the unlimited power of eminent domain. This is not something I support. However, the alternative could've been a conservative written opinion severely limiting the power of eminent domain and the concept of public use, which would've eviscerated a truly necessary government power.
Black doesn't go far enough here, though.
I've been keeping my eye on one particularly powerful private party's attempt to exploit the loopholes of eminent domain--Columbia University's efforts to expand into a semi-but-not-quite-yet blighted region of what is referred to alternately as "Manhattanville" or "West Harlem." The Columbia student newspaper has been covering this story indepth for a few years; they are as objective as undergraduate Ivy-Leaguers can be, and a partial archive of their articles can be found here.
When the flyers first started appearing around the neighborhood that Columbia was using eminent domain to force property-owners out, I was frankly skeptical, thinking to myself that expanding Columbia's campus was in no way analogous to the "public use" involved in building a road. Gradually, however, I started to wonder: Columbia was certainly optimistic that its plans would proceed--even announcing its architectural designs despite the evident community opposition and the articles about locals refusing to sell.
Then the Columbia Spectator got a terrific scoop (which almost had to have come as the result of an insider tip-off) : the student paper filed a FOIA request and obtained records that showed that Columbia trustees had asked NY state officials to condemn certain key buildings--in exchange for $300,000 in "legal fees." The neighborhood's protests have been, so far, peaceful, but don't think they're not pissed off. I imagine that politically active residents were made aware that their case might fall under the Kelo decision.
With this specific, local instance of a local power influencing local politics, it is very hard for me to sigh away this decision as "bad" but not as bad as it could be. I'm pretty far left; I think that locally planned redevelopment is a good thing and that, if done properly, it could conceivably trump private property. Maybe. This decision seems to bless the forced transfer of property from poor private individuals to rich private corporations. The "public interest" seems represented only by elected officials who conduct such business in the darkest of back rooms.
Well, I guess I'll be saying my goodbyes to the fishermen off Marginal Drive below Fairway, then. Hello, brave world...