A battle of wits with an unarmed man
I foolishly decided to engage Angry Drunken Bureaucrat, who clearly has a far superior grasp of public policy than myself, in a discussion over the Supreme Court's recent eminent domain decision.
posted by Jonathan Potts at
8:41 AM
9 Comments:
Well, JP, he's right about the language of PA's Eminent Domain law, but he fails to comprehend the way the common law in this commonwealth has articulated it.
Suffice it to say that the sovereign (in this state anyway) can take, with due process and just compensation, a great many more properties than those numbered on his blog. For the recent Hope VI seizures in the Hill District, for example, a great many buildings that were not "blighted" or "distressed" or "nuisances" to the community were possessed by the city's URA and three taxing bodies.
These properties had the grave misfortune of being in a neighborhood marked "blighted" and "distressed" by the legislative (council) and executive (Murphy) bodies, so they had to go. There's a great deal of case law that buttresses this, and, in fact, even private domiciles can be taken -- city council modified the URA request by insisting that people who actually lived in a building would have the choice of leaving or not.
The problem, of course, is that an estimated 88 percent of the dwellers rented, so they weren't protected when their homes were possessed by the sovereign.
Currently, the city's master plan details every building downtown as existing in a "blighted" corridor, which allows the powers that be to seize any parcel in the name of redevelopment.
One of your former compatriots, Bill Steigerwald, has written about this.
As for Hope VI, an ambitious $350 million redevelopment scheme, the Bush administration nixed the funds following several audits that strongly questioned both the efficacy of the program and the frugality of those spending federal money.
The bipartisan legislation currently percolating through the U.S. Congress, therefore, will make Bush's HUD policy -- no federal funds used to take private land for another private entity -- legally binding nationwide.
11:13 AM
In light of Kelo, you might wish to argue the following:
1. Kelo sought to articulate previous positions, in re ED, most prominently those presented by Berman, 348 U. S. 26; Midkiff, 467 U. S. 229; and Ruckelshaus v. Monsanto Co., 467 U. S. 986. Pp. 6-13 (a very interesting case, the latter).
But even the majority in their opinion agreed that Kelo was an exceptional case. They decided to highlight, however, the "exceptional" and "deliberative" notion of a "plan" the city fathers had drawn up so that it didn't simply appear as if they were taking from one (poor) entity to give to another (wealthier) constituent.
The meat of the case:
"The city's determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue. As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan's comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court's review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment."
So, the wisdom of the Fifth Amendment is trumped by the notion that there is, inherently, legislative goodwill invested in every commercial development (see Hill District), that racism or classism plays no role in such decisions, and that it's enough of a "public service" that some jobs might be created or that tax collections might rise to make it all worthwhile and legal.
2. Berman cast a long, ugly shadow on the majority's thinking, which is a shame. I've always hoped this case would scrap Berman.
Most people, of course, forget the legacy of Berman to the community which fought it. It was a DC case. It arose from disputes kindled by the District's redevelopment authority to seize and "redevelop" poor and working class African-American neighborhoods.
In this case, the District redevelopment agency decided the best use of other people's land was to construct large public housing buildings in order to promote "beautiful" and "sanitary" living spaces.
Here's from subsection (h) of the Berman decision:
"It is not beyond the power of Congress or its authorized agencies to attack the problem of the blighted parts of the community on an area rather than on a structure-by-structure basis. Redevelopment of an entire area under a balanced integrated plan so as to include not only new homes but also schools, churches, parks, streets, and shopping centers is plainly relevant to the maintenance of the desired housing standards and therefore within congressional power."
You might note that your arguer doesn't mention how Berman articulated the PA statute. It's the "entire area," not simply a few bad looking buildings here or there, that can be seized.
Or, in the words of the majority in 1954, the city should be allowed to condemn and seize all properties that constitute "not only slums but also the blighted areas that tend to produce slums."
Thank you, Justice Douglas. Because of you, the Redevelopment Authority moved out 5,000, shuttered a department store that contributed greatly to the city's underlying tax base and replaced a functioning neighborhood with grotesque edifices to human warehousing.
In Berman, SCOTUS was considering the fact that about 64 percent of the properties in the redevelopment area were "blighted." So why did the other 36 percent have to go? And was the "public use" benefit of having large public housing apartments so wonderful?
I can name not a few projects in Pittsburgh that have been nearly as destructive to the poor who were dispossessed of their meager parcels, but they didn't fight back loudly enough to merit a SCOTUS decision.
3. I'm not a big believer in "originalism" or "original intent" or "framers' intent" or whatever other catchphrase law professors are tossing about now to corral the judicial philosophy of Scalia, et al.
But I do believe in the Constitution's Art. 5, so O'Connor was right to bring up this niggling point in case law:
"(A) law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Calder v. Bull, 3 Dall. 386, 388 (1798)
I believe Justice Chase articulated very early on the very limits of how far a sovereign could push eminent domain in the new country, and he based that on a learned reading of the common law and Constitutional writ.
4. Even in the particulars that the majority highlighted in their decision ("the plan"), O'Connor finds oddities that should lead a lower court to toss it out.
Most importantly, three of the petitioners will lose their properties "mysteriously, for 'park support.' Id., at 345-346. At oral argument, counsel for respondents conceded the vagueness of this proposed use, and offered that the parcel might eventually be used for parking."
So carefully considered, this plan will leave the for "existing Italian Dramatic Club (a private cultural organization)," but mark three homes for demolishment for, maybe, "park support" or, failing that, maybe, "parking."
With this in mind, O'Connor's stinging retort to the majority is most apt:
"Where is the line between "public" and "private" property use? We give considerable deference to legislatures' determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning."
11:49 AM
Or you can simply quote John Tierney in today's NYT.
John and I met at a Dem thing at our nearly first lady's Fox Chapel estate last year. All around good guy, but he kept dropping to all the gathered celebrities that he was from Pittsburgh.
By implication, of course, the hostess wasn't.
Of course, nor am I, but Tierney was a welcome respite from all the East Coast blowhards on display.
2:05 PM
http://www.nytimes.com/2005/07/05/opinion/05tierney.html?
2:05 PM
I had forgotten about this gem, too, from a former PG staffer who today works for the evil Trib.
http://reason.com/0006/fe.bs.death.shtml
2:09 PM
By the way, JP, did you know that the PG's Jack Kelly now has his own blog, too? Is this contagious?
www.irishpennants.com/
1:12 PM
As a point of policy and way to right the course, we should try to end blight by ending the designation of it. The "blight umbrella" should vanish.
If I was mayor, there would be no more blight in the city.
We'd blink away blight on the books, maps and in zoning speak. That move would advance the cause for property rights a great deal.
Let's think again about "blight."
10:40 PM
He he he he! If you were mayor. That's a good one, Mark.
2:00 PM
The usual Anonymous didn't say that, Mark. It was a truly anonymous person.
4:55 PM
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