Somin Amicus Brief Urges High Court to Hear Property Rights Case

Professor Ilya Somin recently filed an amicus brief urging the Supreme Court to hear Ilagan v. Ungacta, a property rights case on the Public Use Clause of the Fifth Amendment in which land was condemned for the purpose of benefiting a powerful private party.

In Kelo v. City of New London, the Court ruled previously that the Public Use Clause of the Fifth Amendment allows condemnations for virtually any "public purpose," including the transfer from one private owner to another in hope of stimulating economic development; however, it also ruled that the government may not "take property under the mere pretext of a public purpose, when its actual  purpose was to bestow a private benefit."

"Ilagan is a great case for the Court to clarify the meaning of pretext because it includes all four possible indicators of pretext identified by various lower court decisions: dubious motives, a highly skewed distribution of benefits, lack of careful planning, and a major private beneficiary whose identity was obvious in advance of the taking," commented Somin in a blog posting.

Somin noted that the case also presents an opportunity for the Court to consider overruling Kelo, since the official rationale for the taking, as in Kelo, is the promotion of "economic development."

Somin wrote the brief on behalf of the National Federation of Independent Business Small Business Legal Center, twelve other organizations (including the Cato Institute, the Becket Fund for Religious Liberty, the Owners’ Counsel of America – a nationwide organization of eminent domain lawyers, and the American Forest Resource Council), and several prominent constitutional law and property scholars, including Randy Barnett and Todd Zywicki.

Read the amicus brief.