Somin on Sotomayor: A Property-Rights Red Flag

Supreme Court nominee Judge Sonia Sotomayor's 2006 ruling in Didden v. Village of Port Chester suggests to Professor Ilya Somin that Sotomayor would "uphold even the most abusive condemnations," taking the Supreme Court even further in the direction of undermining private property rights than was done in the controversial case Kelo v. City of New London.

In Kelo the court held that the government can condemn private property and transfer it to another party to promote economic development. Somin points out that Justice John Paul Stevens noted in Kelo that "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit" was not enough to establish "public use."

"In Didden, Judge Sotomayor's federal appellate-court panel went further, upholding the government's condemnation of property after the owners refused to pay extortion money to a politically influential private developer," says Somin. "Extortion for the benefit of the private party is not a public use."

Sotomayor's property-rights red flag, The Orange County Register, July 11, 2009. By Ilya Somin.

"As an example of such an unconstitutional pretextual taking, he cited a case with far less egregious facts than Didden - a California federal court ruling invalidating the condemnation and transfer of a 99 Cents Only store to Costco, rationalized on the ground that Costco might produce more tax revenue and economic growth.

"Like the Didden property, the 99 Cents Only store was located in a redevelopment area. But, the rationale for the 99 Cents Only store condemnation and transfer was at least plausible, since the Costco store might have generated more economic activity and hence a public benefit. In Didden, by contrast, there was no plausible public benefit. Didden and Bologna's land would not have been condemned but for their refusal to pay Wasser the money he demanded. If that isn't a pretextual taking, it is hard to imagine what is.

"To be sure, Wasser disputed part of Didden and Bologna's account of the facts. What is truly frightening is that Sotomayor's panel concluded that Didden and Bologna had no case even if their account of the facts was true.

"Kelo was a 5-4 decision, denounced by many on both left and right. The next few Supreme Court nominees could well determine whether it is overruled - or is expanded to weaken property rights even further. Under the guise of 'redevelopment,' local governments across the country often condemn property for the purpose of transferring it to politically favored interests. Since World War II, hundreds of thousands have lost their homes. Usually, those displaced are poor, minorities or the politically weak - a point emphasized by the NAACP in its amicus brief in Kelo. The stakes here are very high."

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