Kelo V. City of New London
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  Kelo V. City of New London
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Author Topic: Kelo V. City of New London  (Read 4010 times)
H. Ross Peron
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« on: June 17, 2014, 07:01:26 PM »

Dissent.
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bedstuy
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« Reply #1 on: June 17, 2014, 08:00:58 PM »

The majority for sure.  This is an easy case because there's no judicially administrable line between a public use and a non-public use.
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True Federalist (진정한 연방 주의자)
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« Reply #2 on: June 17, 2014, 08:46:36 PM »

The majority for sure.  This is an easy case because there's no judicially administrable line between a public use and a non-public use.

Of course there is.  If the government is using eminent domain to seize property to hand over to another private property owner, then it is a non-public use.
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bedstuy
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« Reply #3 on: June 17, 2014, 09:46:43 PM »

The majority for sure.  This is an easy case because there's no judicially administrable line between a public use and a non-public use.

Of course there is.  If the government is using eminent domain to seize property to hand over to another private property owner, then it is a non-public use.

Fair point, but nobody would draw the line there so it doesn't matter.
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True Federalist (진정한 연방 주의자)
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« Reply #4 on: June 18, 2014, 01:06:44 AM »

The majority for sure.  This is an easy case because there's no judicially administrable line between a public use and a non-public use.

Of course there is.  If the government is using eminent domain to seize property to hand over to another private property owner, then it is a non-public use.

Fair point, but nobody would draw the line there so it doesn't matter.

I would, and while I hate the phrase "intent of the founders" I think they would too by and large.  Unfortunately, you are right that few would draw the line there today.
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politicallefty
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« Reply #5 on: June 18, 2014, 05:14:33 AM »

As I've said and debated before (and really, don't want to do again), I agree with Justice O'Connor's dissent.


Fair point, but nobody would draw the line there so it doesn't matter.

I would, and while I hate the phrase "intent of the founders" I think they would too by and large.  Unfortunately, you are right that few would draw the line there today.

As far as SCOTUS goes, only Justice Thomas went that far. Many states have enacted strict limits on eminent domain on their own as a result of this decision.
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bedstuy
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« Reply #6 on: June 18, 2014, 08:40:41 AM »

The majority for sure.  This is an easy case because there's no judicially administrable line between a public use and a non-public use.

Of course there is.  If the government is using eminent domain to seize property to hand over to another private property owner, then it is a non-public use.

Fair point, but nobody would draw the line there so it doesn't matter.

I would, and while I hate the phrase "intent of the founders" I think they would too by and large.  Unfortunately, you are right that few would draw the line there today.

The basic test for public use has never focused on the end-user of the property, rather it's whether the taking is justified by the heath, safety and welfare of the public.  There are plenty of legitimate takings where the government wouldn't occupy the land physically afterwards.  Think of something like the subway in NYC.  When they were building the subway, they may have needed to take people's land for power stations and entrances/exits.  The subway had a huge public welfare justification and fits right into the heart of the reason we have the takings clause.
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Cassius
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« Reply #7 on: June 18, 2014, 01:07:46 PM »

Dissent. Of course, I'm not expert in the law, especially not American constitutional law, but, from my point of view, 'economic development' is a very spurious justification for the seizure of private land via eminent domain. State security matters are, from my perspective, the only major reason for the use of eminent domain.
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traininthedistance
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« Reply #8 on: June 18, 2014, 02:02:46 PM »
« Edited: June 18, 2014, 02:13:21 PM by traininthedistance »

Majority.  This is one of those things where I do, emphatically, side with the informed minority who is cognizant of the actual issues (and the disastrous knock-on effects that would have resulted from a different decision) rather than the populist opinion that "seems" right if you don't dig deeper.  Of course, I am biased since the particular informed minority in this case happens to be exactly the field I went to graduate school for.

Note that this is not an endorsement of the actual actions taken by the city of New London. 
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Joe Republic
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« Reply #9 on: June 18, 2014, 08:12:25 PM »

Perhaps the saddest part about this case is that the land is still just sitting empty.
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True Federalist (진정한 연방 주의자)
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« Reply #10 on: June 19, 2014, 01:23:48 PM »
« Edited: June 19, 2014, 01:40:13 PM by True Federalist »

The majority for sure.  This is an easy case because there's no judicially administrable line between a public use and a non-public use.

Of course there is.  If the government is using eminent domain to seize property to hand over to another private property owner, then it is a non-public use.

Fair point, but nobody would draw the line there so it doesn't matter.

I would, and while I hate the phrase "intent of the founders" I think they would too by and large.  Unfortunately, you are right that few would draw the line there today.

The basic test for public use has never focused on the end-user of the property, rather it's whether the taking is justified by the heath, safety and welfare of the public.  There are plenty of legitimate takings where the government wouldn't occupy the land physically afterwards.  Think of something like the subway in NYC.  When they were building the subway, they may have needed to take people's land for power stations and entrances/exits.  The subway had a huge public welfare justification and fits right into the heart of the reason we have the takings clause.

Except that the subway in NYC is publicly owned (tho that was not always so).  Transportation infrastructure is certainly an area where I am highly skeptical of private involvement even without any use of eminent domain.
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bedstuy
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« Reply #11 on: June 19, 2014, 01:42:53 PM »

The majority for sure.  This is an easy case because there's no judicially administrable line between a public use and a non-public use.

Of course there is.  If the government is using eminent domain to seize property to hand over to another private property owner, then it is a non-public use.

Fair point, but nobody would draw the line there so it doesn't matter.

I would, and while I hate the phrase "intent of the founders" I think they would too by and large.  Unfortunately, you are right that few would draw the line there today.

The basic test for public use has never focused on the end-user of the property, rather it's whether the taking is justified by the heath, safety and welfare of the public.  There are plenty of legitimate takings where the government wouldn't occupy the land physically afterwards.  Think of something like the subway in NYC.  When they were building the subway, they may have needed to take people's land for power stations and entrances/exits.  The subway had a huge public welfare justification and fits right into the heart of the reason we have the takings clause.

Except that the subway in NYC is publicly owned (tho that was not always so).  Transportation infrastructure is certainly an area where I am highly skeptical of private involvement.

The IRT and BMT were private companies when they built almost every subway stop and line.  So, in your world, they could have not have used eminent domain. 

Or, what if the city uses eminent domain to take a property and later sells the property to a private party?  Wouldn't that violate your theory?
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True Federalist (진정한 연방 주의자)
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« Reply #12 on: June 19, 2014, 02:00:34 PM »

The IRT and BMT were private companies when they built almost every subway stop and line.  So, in your world, they could have not have used eminent domain.

Exactly.  Ideally, the subways in NYC would have been publicly owned and operated from the beginning.

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Depends on what you mean.  If the city used eminent domain to accomplish some public purpose, and sold the property once it decided it no longer wished to pursue that public purpose, then I'd have no problem with that.  The problem occurs when the public purpose is nothing more than a land grab to put the property into use for private profit.
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bedstuy
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« Reply #13 on: June 19, 2014, 02:05:32 PM »

The IRT and BMT were private companies when they built almost every subway stop and line.  So, in your world, they could have not have used eminent domain.

Exactly.  Ideally, the subways in NYC would have been publicly owned and operated from the beginning.

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Depends on what you mean.  If the city used eminent domain to accomplish some public purpose, and sold the property once it decided it no longer wished to pursue that public purpose, then I'd have no problem with that.  The problem occurs when the public purpose is nothing more than a land grab to put the property into use for private profit.

You also support the government owning all cable, fiber optic, gas lines, electricity, etc?
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True Federalist (진정한 연방 주의자)
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« Reply #14 on: June 19, 2014, 03:05:46 PM »

The IRT and BMT were private companies when they built almost every subway stop and line.  So, in your world, they could have not have used eminent domain.

Exactly.  Ideally, the subways in NYC would have been publicly owned and operated from the beginning.

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Depends on what you mean.  If the city used eminent domain to accomplish some public purpose, and sold the property once it decided it no longer wished to pursue that public purpose, then I'd have no problem with that.  The problem occurs when the public purpose is nothing more than a land grab to put the property into use for private profit.

You also support the government owning all cable, fiber optic, gas lines, electricity, etc?

I don't mind that, but because said lines can be run alongside existing public rights of way at the customer access level, I don't see it being a necessity either.  The big trunk pipelines and high-voltage transmission lines I think should ideally be publicly owned.
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bedstuy
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« Reply #15 on: June 19, 2014, 03:22:07 PM »

The IRT and BMT were private companies when they built almost every subway stop and line.  So, in your world, they could have not have used eminent domain.

Exactly.  Ideally, the subways in NYC would have been publicly owned and operated from the beginning.

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Depends on what you mean.  If the city used eminent domain to accomplish some public purpose, and sold the property once it decided it no longer wished to pursue that public purpose, then I'd have no problem with that.  The problem occurs when the public purpose is nothing more than a land grab to put the property into use for private profit.

You also support the government owning all cable, fiber optic, gas lines, electricity, etc?

I don't mind that, but because said lines can be run alongside existing public rights of way at the customer access level, I don't see it being a necessity either.  The big trunk pipelines and high-voltage transmission lines I think should ideally be publicly owned.

That's avoiding the point though.  Let's say the government doesn't own the land and there's a public need for a railroad, irrigation canal or gas pipeline.
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True Federalist (진정한 연방 주의자)
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« Reply #16 on: June 19, 2014, 04:54:06 PM »

That's avoiding the point though.  Let's say the government doesn't own the land and there's a public need for a railroad, irrigation canal or gas pipeline.

Avoiding the point?  I'd say the fact that I favor public infrastructure be publicly owned is precisely on point.  If the government doesn't own the land needed for one of those three projects you suggested, then it can bloody well use eminent domain to obtain the land (or the necessary right of way in the case of the pipeline) and build and operate it itself if a private entity is unable to arrange that on its own.

Capitalism is a wonderful economic system, but as a system and as a theory it works best in the case where goods and services are interchangeable commodities.  Land is not and never will be a commodity as besides its physical characteristics, location is also important, with the most valuable land being valued not for what is on the land, but where it is.  Because of that The Invisible Hand of the Free Market™ cannot with where to locate public infrastructure in a fair and equitable manner (save as already mentioned, it is able to make use of existing public rights of way without causing undue imposition upon existing users).  Since the power of government is required to take the land, it is only proper that the government (and by extension, the people since we are a republic) obtain the benefit rather than an arbitrary group of plutocrats.
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bedstuy
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« Reply #17 on: June 19, 2014, 05:29:36 PM »

That's avoiding the point though.  Let's say the government doesn't own the land and there's a public need for a railroad, irrigation canal or gas pipeline.

Avoiding the point?  I'd say the fact that I favor public infrastructure be publicly owned is precisely on point.  If the government doesn't own the land needed for one of those three projects you suggested, then it can bloody well use eminent domain to obtain the land (or the necessary right of way in the case of the pipeline) and build and operate it itself if a private entity is unable to arrange that on its own.

Capitalism is a wonderful economic system, but as a system and as a theory it works best in the case where goods and services are interchangeable commodities.  Land is not and never will be a commodity as besides its physical characteristics, location is also important, with the most valuable land being valued not for what is on the land, but where it is.  Because of that The Invisible Hand of the Free Market™ cannot with where to locate public infrastructure in a fair and equitable manner (save as already mentioned, it is able to make use of existing public rights of way without causing undue imposition upon existing users).  Since the power of government is required to take the land, it is only proper that the government (and by extension, the people since we are a republic) obtain the benefit rather than an arbitrary group of plutocrats.

Put aside what you think good public policy is as to whether there should be privately owned railroads, wired telecommuncations or canals.  We certainly could have such a system where government owns all the pipelines, railroads, electric wires, etc.  Such a system of government cartels is not a requirement of the Constitution.  That's absolutely fanciful.
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True Federalist (진정한 연방 주의자)
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« Reply #18 on: June 19, 2014, 07:17:53 PM »

No, it's not required, but any reasonably originalist interpretation of the Constitution bars the use of eminent domain to enrich private actors.  The "it'll increase the tax base" argument used by New London effectively makes the eminent domain clause a dead letter.
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bedstuy
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« Reply #19 on: June 19, 2014, 07:36:45 PM »

No, it's not required, but any reasonably originalist interpretation of the Constitution bars the use of eminent domain to enrich private actors.  The "it'll increase the tax base" argument used by New London effectively makes the eminent domain clause a dead letter.

The purpose of the redevelopment plan in Kelo wasn't to "enrich private actors."  It was for the public safety, security and welfare.  That's the key to understanding this part of the Constitution.  The judiciary has no greater competence to evaluate what is in the public interest than the legislature.   

And, if we're talking about extreme cases of the public use definition, look at the Midkiff case.  I think that was straight up land reform, taking a large plantation and dividing up parcels for smaller owners.  That case was hardly even controversial if I remember correctly.
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True Federalist (진정한 연방 주의자)
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« Reply #20 on: June 19, 2014, 09:37:59 PM »

Midkiff was about generally transforming land lessees into land owners rather than trying to achieve a specific one-off land-grab to create a large parcel.  Also to be fair, one reason why it was thought needful was because at the time, Federal taxes on capital gains from a voluntary sale were far far higher than those realized from a sale forced by eminent domain.  There is a reason why it took over ten years for someone to sue to stop a forced sale under the challenged law.  Most of those who were being forced to sell were glad of the opportunity to make their assets liquid without incurring a huge tax liability.  So the practice there was generally win-win.

The redevelopment scheme in Kelo was however absolutely intended to make the developer rich so he'd pay the city more property taxes than the current owners.  It's the sort of excuse that could be given about any abuse of eminent domain, and as such, it makes a dead letter of the clause and thus it cannot be an acceptable reason.
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« Reply #21 on: June 19, 2014, 10:05:15 PM »

Midkiff was about generally transforming land lessees into land owners rather than trying to achieve a specific one-off land-grab to create a large parcel.  Also to be fair, one reason why it was thought needful was because at the time, Federal taxes on capital gains from a voluntary sale were far far higher than those realized from a sale forced by eminent domain.  There is a reason why it took over ten years for someone to sue to stop a forced sale under the challenged law.  Most of those who were being forced to sell were glad of the opportunity to make their assets liquid without incurring a huge tax liability.  So the practice there was generally win-win.

The redevelopment scheme in Kelo was however absolutely intended to make the developer rich so he'd pay the city more property taxes than the current owners.  It's the sort of excuse that could be given about any abuse of eminent domain, and as such, it makes a dead letter of the clause and thus it cannot be an acceptable reason.

Originally you said that any eminent domain transfer where the end user was not the government would be unconstitutional.  That's a ridiculous statement. 

Now, you're making a distinct statement.  That the "purpose" of the taking cannot be the enrichment of private parties.  I assume that would mean that the government could use eminent domain to in the classic situations like railroads to avoid the holdout problems of private acquisition.  That's a public interested reason to take from A and give to B.

The problem with making law based on purpose is that purpose is totally inchoate.  There's always multiple reasons for anything that could be the "real" purpose.  And, it's perfectly permissible for government action to enrich landowners as a benign side-effect.  So, how would you tell the difference between a public interest purpose and a private enrichment purpose?  You could turn every eminent domain proceeding into a giant trial where we find tons of witnesses and put on experts to testify.  We could force legislators to create giant paper trails and endless studies that prove that every action is not secretly designed to enrich some private party.  Ultimately, it would just be a total mess.  The better solution is to create an open, transparent process for land-use decisions and use the democratic process to vote out legislators who engage in the sort of private-interested taking that you're worried about.   
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True Federalist (진정한 연방 주의자)
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« Reply #22 on: June 20, 2014, 12:34:21 AM »

No, my statement was more limited, that the purpose cannot be one that would able to be applied to any and all uses of eminent domain.  The "we think we can increase land value and thus increase property tax revenues" argument that New London was using in Kelo can be applied to any and all uses of eminent domain.  Whereas, the reason put forth by the State of Hawaii in Midkiff was not generally applicable to any and all uses of eminent domain, hence it cleared at least that minimal hurdle.
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« Reply #23 on: June 20, 2014, 09:03:30 AM »

No, my statement was more limited, that the purpose cannot be one that would able to be applied to any and all uses of eminent domain.  The "we think we can increase land value and thus increase property tax revenues" argument that New London was using in Kelo can be applied to any and all uses of eminent domain.  Whereas, the reason put forth by the State of Hawaii in Midkiff was not generally applicable to any and all uses of eminent domain, hence it cleared at least that minimal hurdle.

Imagine if New London was smart.  Don't you think they could come up with a public interested reason why they needed to use eminent domain? 
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« Reply #24 on: July 02, 2014, 11:39:34 AM »

I've posed this before on other thread related to the case, but it seems useful to bring it up here as well.
Consider the following situation. A city is working with a private developer to improve a vacant brownfield. Most of the needed land is in a single parcel, but there are a few other landlocked, unbuildable parcels that make up the project area. The small parcels are actually remnants of lots that existed before the development of the business that became the vacant brownfield, but for some reason the city allowed the subdivision of those lots creating the unbuildable parts.

The developer and city are able to purchase the main lot and all but one of the small parcels which is in the middle of a block with no road frontage. This last parcel is in a trust and the trustee has been unable to locate an owner that can decide on the offer to purchase. There's even some evidence that suggests that the owner is long deceased with no identified heir to the trust. The city seeks eminent domain to purchase that last parcel from the trust.

Is this a sufficiently narrow use of eminent domain to benefit a private entity? If not, does the city ever have a means to resolve the use of the wayward parcel?
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