Posted by Ilya Somin:
Another Sotomayor Misstatement of Kelo:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247598027
In response to questions posed by Republican Senator Charles Grassley,
Judge Sotomayor [1]made another misstatement about Kelo:
[T]he issue in Kelo, as I understand it, is whether or not a state
who had determined that there was a public purpose to the takings
under the -- the takings clause of the Constitution that requires
the payment of just compensation when something is -- is condemned
for use by the government, whether the takings clause permitted the
state, once it's made a proper determination of public purpose and
use, according to the law, whether the state could then have a
private developer do that public act, in essence. Could they
contract with a private developer to effect the public purpose? And
so the holding as I understood it in Kelo was a question addressed
to that issue.
The problem with this answer is that Kelo didn't simply hold that the
state could "contract with a private developer to effect the public
purpose" justifying a taking. It held that the state could actually
transfer ownership of the land to a private party and that this was a
"public use." This is very different from simply hiring a private
contractor to do work on public owned land, such as hiring a private
construction firm to build a publicly owned bridge on government-owned
land. Moreover, the "contract" metaphor is misleading, since the new
private owners of condemned land in Kelo and other similar cases were
not legally required by contract (or anything else) to actually
provide any "economic development" - the "public purpose" that
supposedly justified the condemnations in the first place (I cover
this point in detail in [2]this article, pp. 193-97).
The fact that Kelo allows the transfer of ownership to private parties
who have no contractual obligation to provide economic development in
exchange makes the case very different from merely "contracting with a
private developer to effect the public purpose." If the private
interest gets full ownership of the condemned land and does not have
to provide any economic development in return, the risks of abuse are
far greater than if the developer is merely hired to do work on
publicly owned land that he or she has a contractual obligation to
perform.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071402234.html
2. http://ssrn.com/abstract=874865
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