Friday, June 24, 2005

Supreme Court Permits Virtually Unlimited Taking of Property by Government

The Supreme Court in the case of Kelo v. City of New London announced a definition of "public use" that allows government to take private property and give it to another private owner. The only limitation on the government's power is that the taking be for a "public purpose", which may include development, a higher use, higher tax revenues, etc. The net effect of this ruling is that government may take one person's property to give it to another (politically connected) person and need only make the barest finding that this taking serves some public purpose.

The Fifth Amendment of the U.S. Constitution limits government to taking property only for just compensation and for public use. The Kelo case concerns the "public use" requirement. The City of New London approved a development plan designed to create jobs, increase tax revenues, and to revitalize the city. To carry out the development plan, New London claimed the power of eminent domain to take the property of unwilling sellers.

In deciding the case by 5-4, the Supreme Court majority takes a very expansive view of "public use" and government's power to take private property. The court rules that economic development, even of areas that are not blighted or creating a nuisance, are subject to the government's power to take private property and that courts should grant deference to legislative determinations of the public purpose to be served by economic development.

As dissents by O'Connor and Thomas point out, this holding gives government virtually unlimited power to take property. Almost any plan of economic development will at least claim a public purpose of increasing jobs or tax revenues and that determination will be given deference by the courts. The result of this ruling is that government may take one person's property to give it to another (politically connected) person and need only make the barest finding that this taking serves some public purpose.

(Hat tip to Power Line.)

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