Kelo V. City of New London

[bedstuy]

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.

[bedstuy]

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.

[bedstuy]

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.

[bedstuy]

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?

[bedstuy]

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?

[bedstuy]

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.

[bedstuy]

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.

[bedstuy]

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.

[bedstuy]

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.   

[bedstuy]

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?