Academic journal article Duke Law Journal

A New Take on Public Use: Were Kelo and Lingle Nonjusticiable?

Academic journal article Duke Law Journal

A New Take on Public Use: Were Kelo and Lingle Nonjusticiable?

Article excerpt

The blinding light of familiarity seems to obscure from observation the details of what goes on beneath it.

--Robert L. Hale (1)

INTRODUCTION

When Suzette Kelo sued to prevent New London, Connecticut, from using eminent domain to acquire her home, the Court would have been consistent with its standing jurisprudence if it had dismissed the case for lack of standing. Suzette Kelo was the named plaintiff in Kelo v. City of New London, (2) a 2005 takings decision that generated significant criticism nationwide (3) when the Supreme Court ruled that New London could use eminent domain to force the sale of homes from residents who had lived in them for decades. (4) Although the Court's standing jurisprudence, when taken at face value, suggests that the homeowners in Kelo may not have had standing to sue, (5) the Court never considered that possibility because of an assumption that claims based upon private property interests are more suitable for judicial resolution than less traditional claims that often must overcome significant justiciability hurdles before being addressed on the merits. (6)

The ban on citizen suits prevents federal courts from hearing cases in which a plaintiff seeks to vindicate "the right, possessed by every citizen, to require that the [g]overnment be administered according to law and that the public moneys be not wasted." (7) Consequently, a suit by a citizen seeking an injunction against a city planning a downtown redevelopment project would be dismissed if the sole grounds for suit were that the plan would not actually create jobs or increase tax revenue. (8) Of course, the Kelo plaintiffs were not merely concerned citizens--they were losing their homes. (9) Rather than accept the city's offer to pay the just compensation required by the Takings Clause, (10) the Kelo plaintiffs sought to enjoin the taking of their property on the ground that it failed to satisfy the Fifth Amendment's requirement that a taking be "for public use." (11) Among other things, they argued that the taking of their properties would not result in any public benefit because the development plan was unlikely to create jobs or increase tax revenue, as the city claimed. (12)

Although the Kelo homeowners would be injured if they were forced to sell their homes, (13) those injuries would exist regardless of whether the redevelopment plan succeeded wildly or failed miserably. Suppose that city planners had decided that the New London waterfront would be an ideal location for a sports stadium or another clearly public facility. (14) In such a case, the impact on waterfront property owners would be identical--they would be forced to exchange their homes for just compensation--but they would be unable to sue to enjoin the takings on a public use ground. (15) Put another way, the use to which taken property is put is unrelated to the injury, and consequently to the rights, of its former private owners. In this light, the plaintiffs in Kelo are no more harmed by a failure to comply with the Public Use Clause than is any other citizen with an interest "that the [g]overnment be administered according to law." (16)

Similarly, Lingle v. Chevron U.S.A. Inc., (17) a regulatory takings case argued the same day as Kelo, could have been dismissed for lack of standing. In Lingle, the Chevron Corporation challenged an act passed by the Hawaii legislature that capped the rent that oil companies could charge gasoline dealers who lease company service stations. (18) The legislature hoped that the act would encourage dealers to lower retail gasoline prices, (19) but Chevron argued the act was so economically unsound that it could even cause an increase, rather than a decrease, in prices at the pump. (20) Chevron claimed that because the act was unlikely to actually benefit the public, it violated the Public Use Clause and should be enjoined as an unconstitutional regulatory taking. (21)

The ban on citizen suits would prevent an unhappy consumer from suing to enjoin a state's price-control regulation on the ground that the regulation's economics would be unlikely to actually lower prices. …

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