It hardly seems like two decades have passed. After all, it was a mere 10 years ago we were lamenting “Kelo At 10: Still Stinks, And A Decade Has Not Lessened The Odor.”
But yes, it was twenty years ago today … the U.S. Supreme Court, by the thinnest of margins, held in Kelo v. City of New London, 545 U.S. 469 (June 23, 2005) that there’s nothing inherently suspect about “economic development” takings to justify a higher level of judicial scrutiny than the judges-as-poodles standard of review applied in Public Use challenges to takings for every other reason.
Susette Kelo’s home was taken on the claim that it was needed as part of the package of incentives to lure a pharmaceutical company to set up shop in New London, which would in turn, raise the overall economic climate in the city. That butterfly-effect theory was good enough for the Court’s majority, which applied rational basis review to her challenge under the Public Use Clause.
What a thin reed on which to hang a taking: someone else may make a more intense use of your property, so you can be disseized. Anyone here whose property is already at its maximal potential use? Now you see the problem.
Rather than confront this criticism, the Kelo majority adopted a process-based rationale, concluding that the New London Development Corporation reached the decision to take her home via a public process that was part of an overall economic development and revitalization plan, so the outcome was as trustworthy as every other exercise of eminent domain. That’s right: property owners should rely on the political process to protect their rights, not courts. If Ms. Kelo lost in New London’s process, that’s democracy at work and of no constitutional consequence.
Justice Stevens rested the majority’s conclusion on Berman v. Parker, 348 U.S. 26 (1954), which came to the remarkable conclusion that the legislature’s declaration of public purpose is “well-nigh conclusive.” He also relied on Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which held that exercises of eminent domain to seize private property are considered under the same rational basis standard of review as police power regulation of private property.
With those cases setting the stage, observers understood that Ms. Kelo had no chance unless the Court was willing to revisit them and either carve out an exception for economic development takings, or overrule one or both. As we know, that didn’t happen. Students of the decision understand that despite the loss, it wasn’t like it altered all that much, because it simply affirmed the longstanding judicial approach to Public Use.
In addition to reliance on Berman and Midkiff, most revealing was the majority’s stealth-citation to the Supreme Court decision which forms the basis of land use planning and zoning and the high degree of deference which the courts pay to zoning decisions, Village of Euclid v. Ambler Realty Co., 72 U.S. 365 (1926), thus making express what was strongly hinted at in Midkiff. You land users will find the majority’s language very familiar:
Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue. As with other exercises in urban planning and development,12 the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to...
