Is there any limit to the Takings Clause's Public Use requirement?

June 30, 2014 | By JONATHAN WOOD

Last week, the Utah Supreme Court revived a challenge to the Utah Department of Transportation’s abuse of eminent domain. The Department needed a small part (1.2 acres) of a larger parcel (15 acres) for a light rail project. Instead of condemning the part of the property necessary for the project, the Department decided to take all of the land from its owner. The owner challenged this unnecessary land grab, arguing that the 13.8 acres that weren’t needed for the project weren’t being taken for a public use.

The Constitution limits the government’s authority to take private property to situations where the government will put it to a “public use.” The prototypical public use is the construction of a public building, like a school.

But, shamefully, the Supreme Court has radically expanded this power. In Kelo v. New London, the Court allowed a local government to steal a woman’s little pink house as part of a scheme to benefit Pfizer, the world’s largest pharmaceutical corporation. When the property owner defended her rights, the city argued that the public use requirement was satisfied because a Pfizer office building would contribute to economic growth and increase taxes.

The Supreme Court rubber stamped this plan, construing the public use argument to authorize any taking for a “public purpose” or that might result in some public benefit.

The Utah case is perhaps even beyond Kelo. The Department doesn’t have any plan to do anything with the extra land that it’s taking. Rather, the Department seeks to justify its theft on convenience grounds. It argues that, if it only took the part of the property it needs, the result could be costly and complicated litigation to figure out how much the property owner is owed under the Constitution. Rather than go through that hassle, the Department proposes to wipe out the owner’s property rights entirely.

Although the Utah Supreme Court revived the public use claim, it was “reluctant to venture a view on this difficult question” of whether property could be taken with no plan to use it simply to avoid the possibility that compliance with the Constitution would be time-consuming or complicated. That shouldn’t be a difficult question.