ARLINGTON, Va.—On Friday, March 21, the U.S. Supreme Court will consider whether to hear a case with the potential to overturn one of the most reviled decisions in recent decades: Kelo v. New London. The Institute for Justice (IJ) appealed the case of Bryan Bowers, a New York landowner whose property was seized by a government agency to provide private parking for a nearby private office building.
“State legislatures, state high courts, and American voters amending their own state constitutions have all rejected Kelo because it is simply wrong to let the government take one person’s property away in order to hand it to another private owner with more political power,” said IJ Deputy Litigation Director Bob McNamara. “This case gives the Supreme Court the opportunity to say the same.”
Friday marks the second time the Court will consider the petition: The case was originally distributed for the Court’s February 21 conference. The Court then instructed the New York state court to provide it with the record on appeal. That request has now been fulfilled, and the case is now set for its second conference.
Bowers’ case was supported by a brief from the Cato Institute and George Mason University (Scalia Law School) Professor Ilya Somin and a brief from the Buckeye Institute. Cato and Somin write about the widespread confusion Kelo created in lower courts while the Buckeye Institute shined a light on the injustices of eminent domain and frequently failed promises of redevelopment.
The reaction against Kelo in 2005 was intense, sparking 45 states to change the law to prevent eminent domain from being used for private development. New York was among a handful of states that chose not to protect property owners.
Bryan Bowers and his business partner Mike Licata purchased property across the street from a new hospital in Utica, New York. The property was taken through eminent domain by the Oneida County Industrial Development Agency (OCIDA) and given to their potential competitors to be used for parking.
The power of eminent domain is found in the Fifth Amendment of the U.S. Constitution, which requires that property can only be taken for “public use” and with “just compensation.” Historically, this power was intended to allow the government to acquire land for essential public projects such as roads, schools, and infrastructure.
However, in Kelo, the 5-4 majority held that creating jobs and increasing tax revenue was a “public use.” The dissent countered that this broad definition of public use made the power of eminent domain practically unlimited. Justice Sandra Day O’Connor wrote for the minority that “the government now has license to transfer property from those with fewer resources to those with more.”
While this marks the first time IJ has asked the Supreme Court to overrule Kelo, it has continued to defend property owners from eminent domain abuse where it arises. Currently, IJ is defending small business owners in Missouri from blight designations that would allow their city to take property and give it to private developers. In Mississippi, IJ is defending homeowners from blight designations made in secret that cannot be challenged under state law. And in Georgia, IJ is trying to stop a private railroad from taking land that has been in some families for generations.