Justice Powell, Midkiff and Kelo

I've just posted a revised draft of my essay Nothing "Errant" About It:  The Berman and Midkiff Conference Notes and How the Supreme Court Got to Kelo With Its Eyes Wide Open on SSRN.  The essay draws on the Court's conference notes and internal memoranda to contest Justice O'Connor's assertion in her Kelo dissent that the broad language in Berman and Midkiff was "errant."  The new draft includes material from Justice Powell's files on Midkiff that I didn't have when I posted the first draft.  Justice Powell's files include this remarkable memo to Justice O'Connor commenting on her draft opinion:

Dear Sandra:

This refers to our brief conversation yesterday.  I should have been in touch with you sooner.  My suggested changes, set forth below, do not affect your basic analysis.  I have been concerned by the sweep of language that can be read as saying that any “social” purpose may justify the taking of private property.  The language to this effect is primarily on page 14.

I suggest the following as a substitute for the next to the last sentence in the paragraph on p. 14 that carries over from p. 13:

“As the unique way titles were held in Hawaii skewed the land market, exercise of the power of eminent domain was justified.  The Act advances its purposes without the state taking actual possession of the land.  In such cases,”

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The paragraph that begins on p. 14 also can be read broadly to the effect that  “social problems” may be addressed by taking private property pursuant to “social legislation”.  I suggestion revisions of some of the language of this paragraph, beginning with the second sentence, along the following lines:

“Judicial deference is required here because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power.  State legislatures are as capable as Congress of making such determinations within their respective spheres of authority. See Berman v Parker, 348 U.S., at 32.  Thus, if there are substantial reasons for an exercise of the taking power, courts must . . . ”

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The first full sentence on page 13 states that “redistribution of fees simply to reduce the economic and social evils . . . is a rational exercise of the power of eminent domain.”  Again, I am troubled by the emphasis without limits on “economic and social evils”.  In this case we are concerned only with a very specific and unique evil.  I would suggest omission of the phrase “reduce the economic evils”, replacing it with “correct deficiencies in the market”.

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This is a unique case, and I think we may regret language that could encourage Congress and state legislatures to justify taking private property for any perceived social evil.

I am not sending this letter to the Conference, in the hope that changes along these lines will be acceptable to you.  If not, I probably will write briefly.

I do appreciate your willingness to consider these.

Sincerely,

[LFP]

Justice Powell's proposed language was included in Justice O’Connor’s opinion of the Court (467 U.S. at 243-44) but is completely overwhelmed by the broad language in the rest of the opinion.  The memo is striking in part because Justice Powell seemed cognizant of the risk presented by the broad language of the opinion, but proposed changes that were remarkably ineffective in mitigating this risk.  It is also interesting to contemplate what sort of "social purpose" or "social evil" Justice Powell had in mind as something that would be a more suspect exercise of eminent domain.  Midkiff did involve some unusual facts, but at the end of the day the legislation at issue transferred title to homes from landlords to tenants.  In any event, Justice Powell's suggestion that the government end at issue in Midkiff was okay but that there were some government ends out there that would not justify an exercise of eminent domain highlights the fundamental problem with the approach of Powell's memo and of Justice O'Connor's later dissent in Kelo.  Deciding whether a particular "social purpose" justifies government action should be a legislative determination.  The Court could take a principled position that "public use" should mean actual ownership by a public entity, or it could take a principled position based on deference to the legislature that "public use" should mean "public purpose."  Having made the choice to treat "public use" as "public purpose," however, the Court could not make policy choices between legitimate public purposes without intruding on an area of decisionmaking that should belong to the legislature.

On the general subject of Kelo, Ilya Somin has a good post on blight takings, linking to a longer op-ed he wrote on the subject.  Also, I've always thought that the historical analysis in Justice Thomas' dissent in Kelo was a bit thin.  Chuck Cohen's article Eminent Domain After Kelo v. City of New London:  An Argument For Banning Economic Development Takings offers a very good analysis (beginning on page 526) of the flaws in Thomas' opinion.

Ben Barros

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