Supreme Court Update

There is a Supreme Court case right now that might stop all eminent domain stuff and all projects like it, if they choose to make a broad decision. It was already argued, so we're just waiting for them to issue a decision.

Here is a part of the oral argument that looks kind of promising. Mr. Horton is the attorney for the City that is trying to take people's land for no purpose other than economic development:

***

JUSTICE SCALIA: What this lady wants is not more money. No amount of money is going to satisfy her. She is living in this house, you know, her whole life and she does not want to move. She said I'll move if it's being taken for a public use, but by God, you're just giving it to some other private individual because that individual is going to pay more taxes. I--it seems to me that's, that's an objection in principle, and an objection in principle that the public use requirement of the Constitution seems to be addressed to.

MR. HORTON: But as I say, Your Honor, if public use and public purpose are the same thing, which they are unless you're going to overrule Holmes' decisions from 1905 and 1906.

JUSTICE SCALIA: It wouldn't the first of Holmes' decisions to be overruled.

JUSTICE GINSBURG: Well, I think you'd have to take some substantial chunks of language out of Berman as well, because Justice Douglas spoke very expansively in that case.

MR. HORTON: Plus I think Holmes was right when he said that to say that the public actually has to use the property is not an appropriate meaning of the phrase, so I would not think you'd want to revisit that case, even if you want to revisit some other of Holmes' decisions.
***

JUSTICE SCALIA: Mr. Horton, I'm not proposing that the state has to use the property itself. I'm simply proposing that its use not be a private use which has incidental benefits to the state. That is not enough to justify use of the condemnation power.

MR. HORTON: Well, I don't think--

JUSTICE SCALIA: You can give it to a private entity, you can give it to a railroad, to some public utility. But the use that it's put to by that railroad and public utility is a public use. That's why it's a public utility.
It's quite different to say you can give it to a private individual simply because that private individual is going to hire more people and pay more taxes. That, it seems to me, just washes out entirely the distinction between private use and public use.

MR. HORTON: Well, I don't agree, Your Honor, because I think, you know, I think if a person is without a job and if a person is not able to get basic services that they need from the town because the town can't afford it, that's just as important as a trains running on time or eliminating blight.

***

You can see the two points of view here: Scalia and the more conservative judges are into property rights, Ginsburg and the more liberal judges are into preserving the power of government to help out poor communities. The real problem with the latter argument is drawing a line: where and how do you draw a line between blight and non-blight? To what extent can the government condemn private property in order to fund basic services for those who can't afford them?

The 5th Amendment says private property can only be taken for public use. But the City's argument, that is supported by current case law, is that public use and public purpose are one in the same. The landowner's attorney pointed out that if they are one in the same, then there is no meaningful distinction between condemnation for public use and private use (and a taking for private use is unconstitutional).

The Court is basically 4 to 4 with 1 swing vote in terms of conservative versus liberal, so it could definitely go either way.