Monday, May 17, 2010

Ely on Stevens, Kagan, and Property Rights

James W. Ely Jr. (Vanderbilt) has a column in today's Washington Times titled Stevens, Kagan and property rights. (H/T Ilya Somin).  Ely remarks that "Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives of individuals," and goes on to discuss Stevens' positions in regulatory takings and public use cases.  At least since the mid-1980s, Stevens has certainly been the leader of the pro-government wing of the Court on takings cases, and he has written some of what are (in my humble opinion) the worst regulatory takings opinions in recent memory.  Even though the ultimate holdings in Keystone and Tahoe Sierra are probably correct (especially because both were facial challenges), Stevens' majority opinions in each are terrible, as was his dissent in Lucas.  This said, there is one passage in Ely's op-ed that strikes me as misleading:

In Kelo, Justice Stevens virtually eviscerated the public use limitation of the Fifth Amendment at the federal level. Under his reading of public use, legislators appear to have almost unlimited power to take homes and businesses for economic development. The beneficiaries likely will be corporations and others with political clout. In practice, developers and local officials often work in tandem to eliminate neighborhoods and displace residents in order to achieve hypothetical economic gains.

While I'm not a big fan of Kelo, I don't think it is true that Justice Stevens eviscerated the public use limitation - the Supreme Court as a whole eviscerated it in unanimous opinions in Berman and Midkiff.  I've never seen a convincing argument why the result in Kelo was not mandated by Berman and Midkiff.  So it seems unfair to place all of the blame on Stevens.

It will be very interesting to see what happens with the Court's liberal wing on takings cases after Stevens' departure.  Stevens has so dominated this area that it is hard to pin down exactly where Justices Ginsburg and Breyer stand -- sure, we have their votes, but I can't recall either writing an opinion in a takings case.  Justice Sotomayor and potential Justice Kagan are relatively blank slates on regulatory takings issues.  It may be that this issue has become so ideological that the liberals will consistently vote against property owners.  On the other hand, there is good reason to think that the liberals may be sympathetic to property owners in at least some contexts.  After all, Justice Brennan wrote what is probably the most pro-property-owner opinion in any takings case (his dissent in San Diego Gas & Electric).  We might get a preview of what is to come when the Court decides Stop the Beach sometime in the next couple of weeks.  Because Justice Stevens recused himself, the Court's liberal wing won't be able to follow his lead.

Ben Barros

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You give voice to a misunderstanding of Kelo promoted by redevelopment hawks. Namely, that Berman and Midkiff were direct authority for Kelo.

Close but no cigar. In both these cases the "public purpose" was said to be the elimination of an undesirable present condition -- slums in Berman and the supposed "oligopoly" in Midkiff. Berman made it explicitly clear that it was the taking, not the reuse, that was the "public use.".

In Kelo, on the other hand, there were no adverse condition to be eliminated, and the "public purpose" embraced by the court was the actual reuse of the subject properties by private parties pursuing private profit. Kelo was thus a classic "taking from A to give to B."

And it was intended as a gift to the redeveloper. The plan called for the redeveloper to get a 91-acre tract for 99 years at a cost of $1 per year. How $weet it is.

And don't forget that the city's plans were worthless. The project was never built and the city and state squandered over $80 million for nothing.

"Public use?"

Posted by: Maven3 | May 19, 2010 11:05:56 PM

I agree that the Kelo project sucked. But I don't agree with the characterization of Berman. I've thought a lot about this issue, and I'm not by any means a fan of economic development takings. But I don't think there is any fair reading of Berman and Midkiff that doesn't mandate the holding in Kelo. I explain why here:

To me, Kelo suggests that the holdings in Berman and Midkiff were too broad, and the Court would have done well to consider departing from the prior cases. But a ruling for the property owners in Kelo would have required just that - a departure from the prior cases.

Posted by: Ben Barros | May 20, 2010 8:17:34 AM

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