by Mitch Kokai
Senior Political Analyst, John Locke Foundation
No Property Is Safe. Thanks to Kelo, if the government believes that another private party can make better economic use of a property, it can be seized. This problem is exacerbated because courts defer to government about whether something is a public use and whether a plan even makes sense. Justice O’Connor truly captured the extent of the problems with Kelo in her dissent, including this important point: “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
Those who will be harmed the most will be low-income individuals. There will be a “reverse Robin Hood effect.” The government is not likely to go after valuable properties to help promote economic development and generate more tax revenue. Instead, it will seek out properties that are not generating the desired economic benefits (and cost less) and transfer those properties to private parties whom government officials think will provide the desired effects. Further, those with fewer resources are less able to challenge the seizures of property, making it easier for government to seize the property.
No Practical Protection from Takings for Private Use. The majority opinion asserted that private property still may not be seized for the sole purpose of transferring it to another private party nor can property be taken “under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”
This is nice in theory, but is a fallacy in practice. If the government seizes private property because government officials want to help a developer build a shopping mall, for example, the taking will still appear to have a public purpose because presumably it will have an alleged economic benefit. It is virtually impossible to determine whether a taking is for a private benefit or for a public purpose. As Justice O’Connor explained, “The trouble with economic development takings is that private benefit and incidental public benefit are, by definition, merged and mutually reinforcing.”
Cronyism at Its Worst. A developer can use the government as its middleman to seize properties and avoid paying what likely would be their true costs. Cronyism is bad enough when favors are provided to politically connected interests through subsidies and other special treatment. Kelo has made it easy for government officials to benefit their friends and politically connected businesses using the awesome power of eminent domain. A family’s home could be demolished and their property rights trampled to help a developer. On top of that, the government can use this power in a haphazard manner, with the court unlikely to question the merits of the takings, regardless of how unnecessary or poorly conceived the takings might be.
Why Congressional Action Is Necessary
If the Supreme Court gutted First Amendment protections or other fundamental rights, there would be widespread outrage. While states could provide some protection, it is highly unlikely that the public or policymakers would deem this adequate in protecting federal constitutional rights. The same holds true for private property rights. This by itself is a reason to take action.