Kelo V. City of New London

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

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.

[True Federalist (진정한 연방 주의자)]

Obviously, there should be some means of handling wayward parcels.  I'm not certain that eminent domain should be the technique, but yes there should be, and whatever is the method to be generally used should be followed.  Technically, the parcel in your example is not what is wayward but the beneficee(s) of the trust, so whatever means is used to resolve a wayward trust should apply.