There are certain cases that every law student should read during law school and file away in the back of their minds in case they ever get the chance to relitigate the issues. Kelo v. New London – a 2005 U.S. Supreme Court case – is one of those cases. The Kelo Court issued a ruling allowing the town of New London, Connecticut to use eminent domain to take Susan Kelo’s waterfront home away and gave it to a commercial developer who planned to allow Pfizer and other companies to build facilities there. The developer couldn’t obtain financing, and her property lay dormant for five years. In 2011, the city of New London turned it into a dump for storm debris.
Justices Sandra Day O’Connor and Clarence Thomas’s Kelo dissents are two of the strongest dissents that I read during law school. In particular, Justice O’Connor summed up the consequences of Kelo as follows: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.”
In other words, Kelo was one of the worst decisions that the U.S. Supreme Court has made in its history.
The city of New Haven – operating under the auspices of Kelo – is poised to follow New London’s example and strip some of Connecticut’s hardest-working families of their homes in the name of development. The development at issue? New Haven has struck a deal with Avports, a Goldman Sachs company, to expand Tweed Airport into an nationwide hub. The terms of the deal are particularly telling. Avports will replace Tweed’s quasi-public authority as the supreme managing authority for the airport, and it will get a 43 year lease on the airport. In exchange, it will invest $70 million into expanding the airport and approximately another $30 million on maintaining it, thus relieving taxpayers of their responsibility to fund the airport.
The Tweed Airport expansion is likely to require eminent domain to accomplish, and there will be residents who will refuse to sell their homes, forcing the city to use eminent domain to evict them and give their property to Goldman Sachs for the development.
There is something fundamentally offensive about the proposition that a government can play reverse Robin Hood. Our country has endured on a basic principle for centuries – what is yours is yours, and it is sacred. To that end, we prohibit the government from entering your home without a search warrant or your consent. Court cases that hold that the government can take your house at will are fundamentally offensive to both what the law is and the founding principles of our country.
As Justice Thomas explained in his Kelo dissent, the Fifth Amendment does not authorize the government to seize your property. It prohibits it from seizing your property unless it is for a public use and it pays you just compensation. Taking your property and giving it to another private party is not taking it for a public use. It’s heavy-handed government robbery.
There will different aspects to a case regarding the Tweed expansion, most notably that a common carrier appears to be at play here. Those different aspects could complicate a potential case, but it is a case that needs to be brought.
I didn’t go to law school to litigate the easy cases though. When the City of New Haven comes to kick those people out of their homes, I hope that they call me. I have promised myself to do everything in my power to reverse Kelo. With a reconstituted U.S. Supreme Court, I have solid hopes that it will overrule Kelo, thus allowing Connecticut to redeem itself.