At the end of March, the Supreme Court denied a petition for certiorari in Bowers v. Oneida County Industrial Development Agency, a case involving a county confiscating a private developer’s land to give it to his business rival. Bryan Bowers, a local developer, was under contract to purchase land in Utica, New York, and planned to construct a medical office building. A neighboring medical facility asked the Oneida County Industrial Development Agency to take his land so that it could build a parking lot—thereby eliminating its competition. The purported reason for the taking was job creation but, as Bowers argued, “I don’t know how anyone in good conscience can think that a parking lot creates job opportunities.”
The agency condemned the land and allowed Bowers’s competitor to purchase it. In other words, the government disregarded property rights, chose among business rivals, and rewarded the one it favored.
Though unsettling, this practice, known as “eminent domain,” occurs all too often and is legally permissible. Eminent domain is a practice where the government can take private property for “public use,” typically for projects such as highways and government buildings. Takings are expressly limited by the Fifth Amendment, which prohibits private property from being “taken for public use, without just compensation.” That language implies that the government may only use its eminent domain power if the land is taken for public use.
In 2005, the Supreme Court infamously expanded the scope of eminent domain when it held that the government could take homes to make way for private development. That case, Kelo v. City of New London, relied on a deeply flawed reading of “public use.” Despite clear constitutional constraints, the Kelo court diluted “public use” into “public purpose,” thereby permitting government takings for any use—including handing it over to a private developer—so long as the legislature’s purpose is “legitimate” and its means are not “irrational.” Whereas the Fifth Amendment clearly limited eminent domain, the Court unilaterally and without justification broadened it.
In one of his most notable dissents, Justice Clarence Thomas wrote that this “deferential shift in phraseology enable[d] the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.’” Ultimately, the Supreme Court permitted New London to condemn homes, including Susette Kelo’s famous “little pink house,” so that it could give the land to Pfizer for a new building.
In the wake of the decision, many states passed legislative restrictions on eminent domain. And in a cruel twist of fate, the Pfizer building that displaced Susette Kelo and other homeowners closed after only a few years, and the land at the center of the controversy is now abandoned. But despite legislative and public repudiation of Kelo, it is still good law. Unless the Supreme Court intervenes, governments may continue to use their eminent domain authority to transfer property between private owners—and as Bowers shows, some local governments have unjustly and unfairly exercised this power. As noted in the Bowers petition for certiorari: “The government had articulated a conceivable benefit of taking property from A to give to B, and that was enough.”
What made Bowers so promising was that it could have been the case that finally overturned Kelo, since the conflation of “public use” with “public purpose” was the central question of the suit. But as noted by Robert McNamara, the Deputy Litigation Director for the Institute for Justice—the nonprofit law firm that represented both Bowers and Kelo
The Court declined this opportunity to restore some basic protections for American property rights, but it will have to confront this question eventually… Eminent domain abuse continues to run rampant in New York and some other states that have refused to change their laws, and it will not stop until federal courts return to enforcing the Constitution.
Empowered by Kelo, local governments have used eminent domain to displace residents and take their land for other private uses. Bowers could have been the moment that the Supreme Court curtailed eminent domain abuse and restored value to private property rights in the face of government overreach. Instead, it is now a missed opportunity.
