Post-Kelo reform still blighted


Author: R. S. Radford

In the 2009 volume of the Supreme Court Economic Review, Vanderbilt professor James W. Ely, Jr., takes a look at political responses to the Supreme Court’s horrendous decision in Kelo v. City of New London, and generally finds them lacking.

Kelo, for those who may have slept through the past five years, was the case in which the Court opined that it’s legal for your local city council to seize your home and give it to another private party that promises to use it to boost tax revenues. So long as you receive "fair market value" when you are booted off the old family homestead, of course.

Writing off any meaningful prospect of reform at the federal level, Ely applauds the state courts of Ohio and Oklahoma, which have expressly repudiated Kelo, and protect the citizens of those states against the use of eminent domain for purely private economic development. The courts of some other states, like Michigan, had arrived at the same position even before Kelo came down.

What’s not so promising are the much-ballyhooed legislative "fixes" passed by a number of states around the country. Echoing similar findings by Tim Sandefur, Ely notes that most of these eminent domain reform bills make an exception where localities have designated the property as "blighted." Since in most states, blight is in the eye of the beholder, this means that now the city council can’t take your home unless they want it badly enough to say it’s blighted. (Which is exactly what the City of New London did to the attractive, well-maintained Kelo home in the first place.)

Clearly, much more needs to be done to win true security for American homeowners against greedy and unprincipled government officials.

Ely’s paper can be viewed on SSRN here.