Threshold of a misstep — The Washington Times, 12/21/04

By Clint Bolick
The Supreme Court will soon hear arguments in one of the most important property-rights cases in a generation. A remarkable coalition has called upon the court to restore the constitutional requirement of "public use" as a prerequisite to government taking of property.

One would expect the Bush administration, with its professed support for strict constitutional construction and for property rights, to join the dozens of conservative and libertarian groups arrayed in this effort, or at worst to sit on the sidelines. But for reasons unfathomable to President Bush's core constituency, the administration is seriously considering filing a brief opposing property rights.

The case involves the abuse of one of the most dangerous powers of government, eminent domain. The Fifth Amendment provides that government may take property for "public use" with just compensation.

Historically, eminent domain was used for such obvious public works as schools, roads and the like. In recent years, state and local governments began using eminent domain to transfer property from one private owner to another more politically powerful private owner in the name of economic development. The Institute for Justice, which represents the plaintiffs in the case currently before the court, has documented more than 10,000 cases of such instances of Robin Hood-in-reverse.

So long as the power of eminent domain is unbounded by the requirement of public use, no one's home or business is safe. The government always can make the case that any particular property can be put to "higher" use — i.e., it can always generate more tax revenues for voracious local governments.

The victims are almost always ordinary people, who have little choice but to acquiesce because they cannot possibly afford the legal fees necessary to mount an uphill battle against their government.

The pendulum recently has begun to shift back. The Michigan Supreme Court recently overturned the infamous Poletown decision, in which an entire community was taken for the benefit of a General Motors plant that was never built. In Arizona, the court of appeals recently struck down a city's attempt to take a family-owned brake shop and give it to a hardware store that wanted to expand at a prime location. But until the public-use requirement is restored under the U.S. Constitution, such local triumphs will be episodic.

The case currently before the court presents a classic case of eminent domain abuse. The city of New London, Conn., wants to bulldoze a well-established working-class neighborhood to build a private office space and other unspecified development projects adjacent to a Pfizer plant. In a divided opinion, the Connecticut Supreme Court upheld the taking. The case presents the court with an ideal vehicle to breathe life back into the public use limitation.

Because eminent domain abuse often afflicts minorities, the poor and the politically powerless, the Institute for Justice has been joined not only by dozens of pro-free market groups but by nontraditional allies such as Ralph Nader-affiliated community groups, the National Association for the Advancement of Colored People and the American Association of Retired Persons. When opposition briefs are filed next month, expect a score of taxpayer-financed briefs by state and local governments seeking to protect their limitless power.

That the Bush administration would consider joining them is bizarre.

Ordinarily, an administration weighs in on other people's cases only where a direct federal government interest is presented. Here, no such interest exists, because the federal government typically uses eminent domain only for public use.

So what is it that is impelling the administration to betray its principles?

Is it succumbing to pressure from federal bureaucrats born of solidarity with state and local power? Is it seeking to shelter big business interests that are beneficiaries of eminent domain abuse?

We can't know because no one in the administration is saying. Even worse is the brazen disdain with which the administration has dismissed pleas from some of its staunchest allies to stay out of the case.

On Oct. 29, a letter signed by 44 conservative and libertarian luminaries -- ranging from Grover Norquist to Paul Weyrich and David Keene, and encompassing such groups as the Free Congress Foundation, Family Research Council and National Taxpayers Union — sent the president a letter imploring him to stay on the sidelines. It would be nice to have the administration on the playing field on the side of its friends; but at this point, agnosticism is preferable to adopting the wrong religion.

When property-rights advocates presented a copy of the letter to Timothy Goeglein, the administration's emissary to the conservative movement, he dismissively dropped it to the ground. At coalition meetings hosted by Grover Norquist, administration officials have refused to comment.

The administration's allies deserve more than that. So does the public, which has a right to demand that public officials abide the constitutional limits on government power.

Many among them thought they had a friend on the White House. So when the arguments are submitted in the New London case, it will be jarring if we see the administration standing with the foes of property rights. Perhaps by then the administration will explain its betrayal — or maybe not, for its actions appear truly inexplicable.

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The Washington Times: www.washingtontimes.com

Clint Bolick is strategic litigation counsel for the Institute for Justice
Contact the Institute by email at general@ij.org