Saturday, June 25, 2005

The Oral Argument

I was reviewing the oral argument from Kelo and found this interesting:

13JUSTICE BREYER: Justice Douglas says
14 there that as long as it's an objective within
15 Congress and legislature's legitimate grant of power,
16 they can do it, I mean, as long as there's a -- so
17 why does there have to be a limit within that broad
18 limit?

19 MR. BULLOCK: Well, Your Honor, the limit
20 is that there cannot be takings for private use.

21 JUSTICE BREYER: Of course, there can't,
22 purely. But there is no taking for private use that
23 you could imagine in reality that wouldn't also have
24 a public benefit of some kind, whether it's
25 increasing jobs or increasing taxes, et cetera.

1 That's a fact of the world.

2 And so given that fact of the world, that
3 is law, why shouldn't the law say, okay, virtually
4 every taking is all right, as long as there is some
5 public benefit which there always is and it's up to
6 the legislature.

7 MR. BULLOCK: Your Honor, we think that
8 that cuts way too broadly.

9 JUSTICE BREYER: Because?

10 MR. BULLOCK: Because then every property,
11 every home, every business can then be taken for any
12 private use.

13 JUSTICE BREYER: No. It could only be
14 taken if there is a public use and there almost
15 always is.
You can almost always claim that there is a public benefit to the use of eminent domain. You can always talk about tax dollar generation or additional jobs, or just beautification.

Under Breyer's conception of the takings clause, there is virtually no constitutional protection against the taking of your home or business, so long as just compensation is paid.

Doesn't Scalia nail the issue in the following exchange?
11 JUSTICE SOUTER: Well, I'm not interested
12 in the label. I'm just saying if the government says
13 we need to increase the tax base because we have a
14 depressed city, so we are going to take some of our
15 tax money now, and we are just going to buy up
16 property that people are willing to sell to us, and
17 we are going to assemble parcels. And when we get a
18 big enough one, we are going to sell them to a
19 developer for industrial purposes. And that will,
20 that will raise the tax base. Is there anything
21 illegitimate as a purpose for governmental spending
22 in doing that?

23 MR. BULLOCK: No, Your Honor. We do not
24 believe that that would be -- it's not a public use.

25 JUSTICE SOUTER: Why isn't there a public
1 purpose here?

2 MR. BULLOCK: Well, Your Honor, because
3 this case affects the eminent domain power, which is
4 regulated by the Fifth Amendment -5

JUSTICE SOUTER: No, but we are talking
6 about -- I mean, I realize that, but I mean, I
7 thought your point was that it was use of eminent
8 domain power for an improper purpose. And you
9 characterize that purpose as conveying property to
10 private owners.

11 Well, in my example, the same thing is
12 going on except that it's not using the eminent
13 domain power. If the purpose in my example is a
14 proper public purpose, why isn't it a proper public
15 purpose when the government does it by eminent
16 domain? What changes about the purpose?

17 MR. BULLOCK: Your Honor, because of the
18 public use restriction of the Amendment. That's what
19 we really -20

JUSTICE SCALIA: Mr. Bullock, do you
21 equate purpose with use? Are the two terms the same?
22 Does the public use requirement mean nothing more
23 than that it have a public purpose?

24 MR. BULLOCK: No, Your Honor.

25 JUSTICE SCALIA: That's your answer to
1 Justice Souter.