What are the consequences of the new 'eminent domain' rules by the supreme court

Texas is trying to get an Amendment on the November ballot as well.

I, too, am torn on this issue. I can see both sides. Of course, as a fenc- riding moderate, this is not uncommon for me. Had I been sitting on the court (hey! I’m more confirmable than Migel Estrada!), I’d have been with the majority.

I don’t like it but as long as due process and just compensation exists, I don’t see any extra language in the takings clause that limits the scope of the power.

IANAGL, so I am not terribly familiar with the case history and was far too lazy to read the ruling. What legal justifications did the majority use to object to this other than outcome determination? The three “strict constructionists” sided in the minority yet it would seem that they’d have to find some penumbra or implied limitation to justify their argument.

The justice that I am closest too ideologically is Kennedy. Of course, since he is on the fence and I am on the fence, we hardly ever fall the same way! :smack:

Justice Stevens said that state governments can restrict local governments’ use of eminent domain. A local state Senator in Pennsylvania is preparing legislation that will do just that. So my local borough wouldn’t be able to help itself to my block to put in a pedestrian mall, or some such.


You are right. I don’t know too many experts in eminent domain law who didn’t think that this was already the law. Take a look at the two cases cited in the Court’s opinion.

In Midkiff, the state of Hawaii responded to a historical situation that resulted in most of the land being owned by only a few landholders:

Most individuals lease the land on which their homes sit, and the fee holders refuse to sell. In order to solve the problem, the legislature passed a statute that permits the lessee’s to initiate condemnation of the property, which they then immediately purchase from the state.

(Footnotes omitted).

And the state (Hawaii Housing Authority) would even lend the lessee’s up to 90% of the purchase price.

The Court ruled that:

  1. public use is coteminous with police power.

  2. Noted that “one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid.”

  3. Qualified that rule like this:


  1. Upheld the statute as constitutional.

In Berman, the Court faced a challenge to a statute that created an agency that was commissioned to condemn and assemble tracts of land in blighted urban areas. Once the land was assembled, the agency was authorized

The Court unanimously approved the statute.

The scary part of *Kello * is not its result (well, ok, it is scary, but not surprising), but the broad language that the Court used to explain its holding

(Internal citation and footnote omitted.)

. . . .


So they’ll cross that bridge when they come to it. Looks like it’s not far off.

The Michigan Supreme Court overturned its Poletown decision last year.


Dictated but not red. :rolleyes:


My understanding is that governments, like most people, don’t pay a penny more than they have to. A landowner can go to court and fight about the value of the property being taken, and has his own expert appraiser try to counter what the government’s expert appraiser says the land’s value is. Government appraisers are not above low balling.

My trouble with takings cases is that the property’s value is not computed with regard to the proposed project, and thus results in the compensation being artificially low. That is, it seems to me that the landowner should get a share of the premius of the land’s value attributed to the increase in demand due to the proposed project. That’s never the way it is calculated though.

What if the use was truly a public one–one that gives a benefit to the public, but might actually reduce the property value; should the landowner’s compensation take that into account. Or should we attempt to monetize things like the value of roads?

I’d like to see an analysis (as opposed to a critique) of Justice Stevens’ majority opinion by one of the expert Dopers-at-law. My impression is that he’s extending the idea of eminent domain as a magisterial act for a public purpose (with just compensation) to assert that the taking of property for the benefit of a private developer is legitimate where the purpose asserted is economic development that benefits the community as a whole. To me, this goes beyond the acceptable limits of eminent domain, but I’d be willing to see arguments to the contrary.

Governments ain’t people. The Consitution says that they have to pay “just compensation.” The standard measure in the US for this sort of thing is fair market value. What is a little counterintuitive for me is that the “just compensation” does not include sentimental value. E.g., http://www.michaelchapman.com/abc.html (emotional or speculative values of property excluded).

Even more incongruous are the inverse condemnation (regulatory takings) cases. In these cases, the Court decides whether a taking has occured, and diminution of value is only one factor.

But the phrase “for public use” must have been inserted in the Constitution to mean something, right? There is some distinction being drawn here–eminent domain cannot apply to things outside the boundary of “public use,” whatever that means.

So my question is, what boundary does this phrase mark now, given this recent decision? Can someone come up with an example–a non-fantastic example–of anything the government might target in the name of “eminent domain” where the SC would opine that it overstepped its bounds? IOW, what, exactly, did they think the founding fathers were guarding against?

Is there anything the government could not now realistically target? Again, a specific example would be helpful for me. Seems as if this decision defies common sense–“only for public use” equates with “anything the government could possibly conceive” (barring a specific local restriction).

Thought I’d done this in post #24. As I pointed out there, he really isn’t extending much. But here is what he says:

So they can’t give it to a developer just to benefit the developer. But:

Just about anything outside of that is probably ok.

(Emphasis added.)

(Emphasis added.)

So that’s it then, economic benefits (new jobs and more tax revenue)=public use.

But wait, you say, I’m still not sure:

(Emphasis added.)
In other words, the Court refused to adopt a bright-line rule that economic development is not public use because precedent already says that it is, and even if it didn’t the Court is unwilling to distinguish economic development from other public uses.

And again, the Court is not shy about admitting that economic development is a public purpose under its cases.

**Polycarp **, have you read *Midkiff *and Berman? Do you agree with those holdings? Can you think of a meaningful distinction between those cases and this one?

Here’s the deal. There are two doctrinal factors that make the public use limitation about as meaningless as the limitations on Congress’s commerce power:

  1. The Court is willing to go beyound common carrier/public utitlity public use. Once we let go of literal public use, and consider public benefit, the slope gets pretty slippery.

  2. Just as in the commerce clause cases and economic regulation cases, the Court is willing to grant a lot of deference to the legislatures in determining what is a public use. The legislature can be dead wrong, but the Court is unlikely to intervene as long as the legislature believed (and I misuse this word) or claimed that there was a police power justification for the taking.

That’s been established doctrine for a long time. That’s why I say that this case was not a surprise.

The only thing that has been carved out is a taking purely for the benefit of a private party. (See the quoted language above). And that really boils down to how the government talks about the taking. They could say, for instance, “We want to take your land and give it to Walmart because [Walmart contributed to all of our campaigns][the CEO of Walmart is the governor’s brother-in-law][we want Walmart to have it].” Those are bad reasons to take property, and would probably not hold up.

But if they simply said, “we want to take your property and give it to Walmart because we think Walmart will provide jobs.” The Court would probably uphold the taking. Just as in the commerce clause cases, there are now magic words. In the commerce clause arena, it helps to say that Congress finds that the activity, when aggregated, substantially affects interstate commerce; in takings cases, it helps if the taking is part of an economic development plan, especially a detailed or comprehensive one. Absent that, simply saying that the particular taking is expected to increase tax revenue or provide jobs.

An issue that will probably never come up is this: What if it can be proven that nobody really believed that the taking was part of an economic development plan, but the taking is supported by that claim? In other words, how much deference will the Court give to the legislature’s claim that it believes the taking will provide a benefit?

Your explanation is helpful and it confirms my first impression–there is really no circumstance where the government is likely to invoke “eminent domain” where they are not free to do so. “For public use” is universally rendered a largely meaningless distinction, which I don’t believe it could possibly have been to whomever inserted the phrase.

A question: If the government gives the land to someone who will create greater tax revenue, even if only through his own “private use,” would anything prevent the governemnt from doing so? For example, if Trump wants to buy my land, knock down my house and build his own more expensive house (which will provide greater tax revenue via real estate tax), what would stop them? The transfer is no longer “purely for the benefit of a private party.” Everyone in the municipality benefits from the greater revenue.

Seems to me, however unpopular this move would be, theoretically nothing stops the government now. “For public use” has no real weight; the SC has rendered the phrase meaningless noise. The government is restricted only from doing those things that are not in its own best interests. Not a restriction at all–and, again, that could not possibly have been the intent of the framers.

Right. Like I said, it’s not what they do, but why they said they did it. If they took your property with the philosophy, “a bigger house will increase property values, which means more property taxes,” that’s probably enough. If they simply took it with the intention to sell it to him, that probably isn’t.

And there is another lesson here. The government could be quite wrong in its assumption, and probably is: In this situation, it doesn’t necessarily that neighboring property values will increase, but the Court won’t second guess the decision makers. And so we are one step back away from Kafka–It isn’t necessary for the government to be correct about these things; it is only necessary that they believe them. The question that I raised earlier, is whether it is really sufficient for the government to say the magic words, even if they don’t really believe them.

Which is pretty much what O’Conner said in her dissenting opinion:

I agree 100%. “For public Use” has meaning and precedent. If it needed further clarification the Founding Fathers would done so. It has been expanded over time until it no longer has any meaning in relation to private property.

I could flood this site with examples but I’ll just pick 2 from my state: Norwood Ohio and Lakewood Ohio. Both are cities with government officials who believe that tax revenue is justification to nullify property rights.

After this last decision by the Supreme Court I would love to see the 5 Justices define the phrase “property rights” while keeping a straight face. They have essentially decided that we’re all equal when it comes to these rights. Except that some people are more equal than others. Maybe they should exchange their robes for a ripped t-shirt that says “Got Bling”.

I’ll say it again. I’m not a sit-in-the-back-of-the-bus kind of guy. This decision crosses the line of personal property rights.

This is a bit of an exaggeration, no? It certainly favors companies over individuals, and developers over property holders, but all cases favor one side more than the other. What’s clear, as you point out, is that the idea that property is somehow sacred and exempt from seizure has become a little more distant. As I have pointed out, this decision changes little vis a vis prior law. But this case certainly focuses the issue by pitting symbolic champions against each other (homeowner who values the unique features of a specific lot, which she enjoys improving; and long-term residents who have known no other home vs. government taking land so that it can hand it over for commercial development).

In Midkiff, the condemnation was mostly against giant trusts. And the poor homeowners were the beneficiaries of the condemnation. Perhaps it was for this reason that so few people are aware of it. At any rate, *Midkiff * kinda meshes with what I started to say. The takings cases can benefit anyone. In *Midkiff *, the government took from the rich to give to the poor; in this case, the burden ran the other way–the big company won.

But that doesn’t mean the big companies always win these cases. Sometimes the taking happens to them.

The OP was wondering what the consequences would be.

I hear rumors that some state politicians are reacting strongly against this decision, and are trying to pass legislation to strengthen private property rights. Does anyone have details on what steps they are taking, and how many states are performing this backlash?

It would be ironic if this ruling in favor of Big Business and Big Government resulted in fewer examples of this kind of stuff happening.


No, I disagree. It is happening now. Towns are trying to remove people from their homes so bigger homes can be built. Personal property should not be the whim of politicians unless it is a public conveyance that cannot be built anywhere else. Roads yes, houses for the rich, HELL NO.