Credit: Todd KraninEarlier this week Republican presidential candidate Donald Trump told Fox News that he totally supports the Supreme Court's shameful 2005 eminent domain decision in Kelo v. City of New London. "I think eminent domain is wonderful," Trump declared.
It was not a particularly surprising comment. After all, as Inoted here yesterday, Trump has a long record of seeking to personally profit from eminent domain abuse. One such incident occurred in 1994 when Trump joined forces with government officials in New Jersey in a legally unsuccessful attempt to kick an elderly widow out of her Atlantic City home in order to make room for a limousine parking for the nearby Trump Plaza hotel and casino.
Today the conservative site Breitbart published an article featuring Trump's response to his eminent domain critics (including me). "Trump and his critics have different views on what constitutes 'public use,'" Breitbart summarized.
No kidding. Trump's latest comments only provide further proof of his fundamentally unconstitutional support for eminent domain abuse. Here's why.
The Fifth Amendment to the U.S. Constitution forbids the government from taking private property unless the taking is "for public use." That concept has traditionally been understood to apply only to a very narrow category of undeniable public projects, such as the building of roads or bridges.
But Trump believes the government should get to wield far more power than that. Trump believes it should count as a legitimate public use to build a limousine parking lot (for Trump) or "to build a factory that's going to have 5,000 jobs."
To be clear, that is precisely the same untrammeled and unconstitutional rationale adopted by the liberal Supreme Court majority in Kelo v. City of New London, one of the most appalling decisions of the modern era. In that case, government officials sought to tear down a working-class neighborhood because they wanted to give the land to private developers (working in cahoots with the powerful Pfizer corporation) for the express purpose of (hopefully) generating higher tax revenues sometime in the future. During the February 2005 oral arguments, the city of New London openly acknowledged this outlandish scheme.
Under your theory of the case, Justice Antonin Scalia asked the lawyer representing the city, "you could take [private property] from A and give it to B if B is richer, and would pay higher municipal taxes, couldn't you?"
"Yes, Your Honor," the lawyer replied.
"For example," interjected Justice Sandra Day O'Connor, "Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now, is that okay?"
"Yes, Your Honor, that would be okay," the city's lawyer promptly responded.
Three months later, the Court made the land grab official. As Justice O'Connor remarked in dissent, joined by Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, the result of Kelo "is to wash out any distinction between private and public use of property—and thereby effectively delete the words 'for public use' from the Takings Clause of the Fifth Amendment."
Furthermore, not only was the Kelo decision an unconstitutional disaster, the Kelo "redevelopment" was a disaster too. As I note in my recent book Overruled:
Despite prevailing at the Supreme Court, the development project that was supposed to entice Pfizer and provide "appreciable benefits to the community" (in the approving words of Justice Stevens's majority opinion) was never built, and in November 2009 Pfizer announced that it was closing shop and pulling out of New London entirely. As for Fort Trumbull, the razed neighborhood was never redeveloped and continues to stand empty today. In fact, in the aftermath of Hurricane Irene in 2011, New London officials encouraged city residents to use Fort Trumbull as a dump site for storm debris.
But that's not the worst of it. As Hartford Courant reporter Jeff Benedict revealed in September 2011, Connecticut Supreme Court Justice Richard N. Palmer, one of the four justices who voted against the property owners and thus directly precipitated their appeal to the U.S. Supreme Court, personally apologized to Susette Kelo at a May 2010 event at the New Haven Lawn Club. "Justice Palmer turned to Susette, took her hand and offered a heartfelt apology," Benedict reported. "Tears trickled down her red cheeks. It was the first time in the 12-year saga that anyone had uttered the words 'I'm sorry.'"
This is what Trump's destructive and unaccountable vision of government power looks like in practice.