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Title: Donald Trump and Eminent Domain
Source: National Review Online
URL Source: http://www.nationalreview.com/artic ... inent-domain-robert-verbruggen
Published: Apr 19, 2011
Author: Robert VerBruggen
Post Date: 2015-10-07 09:21:48 by cranky
Keywords: None
Views: 1091
Comments: 9

A brief history

In a free market, there’s a pretty simple process for dealing with the situation that arises when one person covets another’s belongings: The coveter makes an offer to purchase them. If the offer is rebuffed, the coveter can make a new proposal, but he cannot simply take what he wants. It’s an effective way of recognizing the impracticality of the Tenth Commandment while enforcing the Eighth.

Donald Trump’s covetous nature is not in dispute, but what many may forget is that he’s no great respecter of the admonition not to steal, either: The man has a track record of using the government as a hired thug to take other people’s property.

This is called, of course, “eminent domain.” The Constitution’s Fifth Amendment allows the government to take private property for “public use,” so long as “just compensation” is paid. In the infamous 2005 Kelo decision, the Supreme Court held that “public use” could include, well, private use, so long as the new property owner paid more in taxes than the previous one. In other words, it allowed developers and the government to gang up on homeowners. The developer gets more land, the government gets more tax money. The only losers are the original owner and his property rights.

A decade and a half ago, it was fresh on everyone’s mind that Donald Trump is one of the leading users of this form of state-sanctioned thievery. It was all over the news. In perhaps the most-remembered example, John Stossel got the toupéed one to sputter about how, if he wasn’t allowed to steal an elderly widow’s house to expand an Atlantic City casino, the government would get less tax money, and seniors like her would get less “this and that.” Today, however, it takes a push from the Club for Growth to remind us of Trump’s lack of respect for property rights.

The problem dates back to at least 1994. That year, Trump promised to turn Bridgeport, Conn., into“a national tourist destination by building a $350 million combined amusement park, shipping terminal and seaport village and office complex on the east side of the harbor,” reported the Hartford Courant. “At a press conference during which almost every statement contained the term ‘world class,’ Trump and Mayor Joseph Ganim lavished praise on one another and the development project and spoke of restoring Bridgeport to its glory days.”

The wrinkle? “Five businesses and the city-owned Pleasure Beach now occupy the land,” as the Courant put it. The solution? “The city would become a partner with Trump Connecticut Inc. and obtain the land through its powers of condemnation. Trump would in turn buy the land from the city.”

Here’s how the story concluded: “The entire development would cost the city nothing, Trump said, and no private homeowners would be affected because there are no dwellings on the land. Trump would own everything.”

That brings us to the story of the aforementioned elderly widow in Atlantic City, which starts at about the same time. The woman, Vera Coking, had owned property near the Trump Plaza Hotel for three decades, and didn’t want to move. Trump thought the land was better suited for use as a park, a parking lot, and a waiting area for limousines.

He tried to negotiate, at one point offering Coking $1 million for the land. But she wasn’t budging. So New Jersey’s Casino Reinvestment Development Authority filed a lawsuit, instructing Coking to leave within 90 days and offering compensation of only $251,000.

Perhaps the only upside to this story is that in neither case did Trump succeed. The Bridgeport plan fizzled. Coking fought in court, and — in part because these were the days before Kelo was decided, no doubt — she was lucky enough to win. In 1998, a judge threw out the case.

In 2005, however, Trump was delighted to find that the Supreme Court had okayed the brand of government-abetted theft that he’d twice attempted. “I happen to agree with it 100 percent,” he told Fox News’s Neil Cavuto of the Kelo decision.

Can Republicans support someone with so little regard for the property of others? Let’s hope not.

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Begin Trace Mode for Comment # 9.

#9. To: cranky (#0)

This is called, of course, “eminent domain.” The Constitution’s Fifth Amendment allows the government to take private property for “public use,” so long as “just compensation” is paid. In the infamous 2005 Kelo decision, the Supreme Court held that “public use” could include, well, private use, so long as the new property owner paid more in taxes than the previous one. In other words, it allowed developers and the government to gang up on homeowners. The developer gets more land, the government gets more tax money. The only losers are the original owner and his property rights.

What the court actually said, citing precedent from 1906.

Kelo v. New London, 545 US 469 (2005) (footnotes omitted)

Opinion of the Court Justice Stevens delivered the opinion of the Court.

In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.” 268 Conn. 1, 5, 843 A. 2d 500, 507 (2004). In assembling the land needed for this project, the city’s development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city’s proposed disposition of this property qualifies as a “public use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.

[...]

III

Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with commoncarrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case. As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896). Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A. 2d, at 536. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute challenged in Midkiff, 467 U. S., at 245, the City’s development plan was not adopted “to benefit a particular class of identifiable individuals.”

On the other hand, this is not a case in which the City is planning to open the condemned land—at least not in its entirety—to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e. g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e. g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158–164 (1896). Thus, in a case upholding a mining company’s use of an aerial bucket line to transport ore over property it did not own, Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 531 (1906). We have repeatedly and consistently rejected that narrow test ever since.

The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.

nolu chan  posted on  2015-10-07   18:36:26 ET  Reply   Untrace   Trace   Private Reply  


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