Amdt5.9.2 Public Use and Takings Clause

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Just Compensation Clause explicitly requires that the taking of private property be for a public use; the government cannot deprive anyone of their property for any reason other than a public use, even with compensation.1 The question of whether a particular intended use is a public use is clearly a judicial one,2 but the Court has always granted a high degree of deference to legislative determinations,3 stating that “[t]he role of the judiciary in determining whether that power is being exercised for a public use is an extremely narrow one.” 4 When state action is challenged under the Fourteenth Amendment, the Court also defers to the highest court of the state in resolving such an issue.5 In its 1908 decision Chicago, B. & Q. R.R. v. City of Chicago, the Court noted that, “[n]o case is recalled where this court has condemned as a violation of the Fourteenth Amendment a taking upheld by the state court as a taking for public uses . . . .” 6

In a 1946 case involving federal eminent domain power, the Court cast doubt upon the power of courts to review the issue of public use, stating “[w]e think that it is the function of Congress to decide what type of taking is for a public use and that the agency authorized to do the taking may do so to the full extent of its statutory authority.” 7 While there is some suggestion in United States ex rel. TVA v. Welch that “the scope of the judicial power to determine what is a ‘public use’” may differ between Fifth and Fourteenth Amendment cases, with greater power in the latter type of cases than in the former,8 Welch also cautions great judicial restraint in evaluating “public uses” more broadly.9 Once it is admitted or determined that the taking is for a public use and is within the granted authority, the necessity or expediency of the particular taking is exclusively in the legislature, or the body to which the legislature has delegated the decision, and is not subject to judicial review.10

At an earlier time, the prevailing judicial view was that the term “public use” was synonymous with “use by the public” and that, if there was no duty upon the taker to permit the public as of right to use or enjoy the property taken, the taking was invalid. But the Court rejected this view.11 The modern conception of public use equates it with the police power in furtherance of the public interest. No definition of the reach or limits of the power is possible, the Court has said, because such “definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . . Public safety, public health, morality, peace and quiet, law and order—these are some of the . . . traditional application[s] of the police power . . . .” 12 Because the legislature has authority to effectuate these matters, its power to achieve them by exercising eminent domain is established. As the Supreme Court observed, “For the power of eminent domain is merely the means to the end.” 13 Subsequently, the Court added as an indicium of “public use” whether the government purpose could be validly achieved by tax or user fee.14

Traditionally, eminent domain has been used to facilitate transportation, the supplying of water, and the like,15 but its use to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent.16

, § 10002 (1988) (taking lands for addition to Manassas National Battlefield Park). The Supreme Court has generally approved federal and state governments using the power of eminent domain in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in place of deteriorated housing, and promotion of aesthetic values as well as economic ones. In Berman v. Parker,17 a unanimous Court observed: “The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” 18 For “public use,” then, it may well be that “public interest” or “public welfare” is the more correct phrase.19 In Hawaii Housing Authority v. Midkiff,20 the Court applied Berman to uphold the Hawaii Land Reform Act as a “rational” effort to “correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly.” 21 Direct transfer of land from lessors to lessees was permissible, the Court held, as there is no requirement “that government possess and use property at some point during a taking.” 22 “The ‘public use’ requirement is . . . coterminous with the scope of a sovereign’s police powers,” the Court concluded.23

The Court’s expansive interpretation of public use in eminent domain cases may have reached its outer limit in Kelo v. City of New London.24 There, a five-Justice majority upheld as a public use the government acquisition of privately owned land to be transferred to another private party for purposes of economic development, pursuant to a redevelopment plan adopted by a municipality to invigorate a depressed economy. The Court saw no principled way to distinguish economic development from the economic purposes endorsed in Berman and Midkiff, and stressed the importance of judicial deference to legislative judgment as to public needs. At the same time, the Court cautioned that condemnations of individual properties that are transferred to another private party, not as part of an “integrated development plan . . . raise a suspicion that a private purpose [is] afoot.” 25 A vigorous four-Justice dissent countered that, because localities will always be able to manufacture a plausible public purpose, the majority opinion leaves the vast majority of private parcels subject to condemnation when a locality desires a higher-valued use.26 Revisiting the Court’s past endorsements in Berman and Midkiff of a public use/police power equation, the dissenters referred to the “errant language” of these decisions, which was “unnecessary” to their holdings.27

Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–59 (1896); Cole v. La Grange, 113 U.S. 1, 6 (1885). back
City of Cincinnati v. Vester, 281 U.S. 439, 444 (1930) ( “It is well established that in considering the application of the Fourteenth Amendment to cases of expropriation of private property, the question what is a public use is a judicial one.” ). back
Kelo v. City of New London, 545 U.S. 469, 482 (2005). The taking need only be “rationally related to a conceivable public purpose.” Id. at 490 (Kennedy, J., concurring). back
Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent domain power in District of Columbia). back
Green v. Frazier, 253 U.S. 233, 240 (1920); Vester, 281 U.S. at 446. See also Haw. Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (appeals court erred in applying more stringent standard to action of state legislature). back
Hairston v. Danville & W. Ry., 208 U.S. 598, 607 (1908). An act of condemnation was voided as not for a public use in Mo. Pac. Ry. v. Nebraska, 164 U.S. 403 (1896), but the Court read the state court opinion as acknowledging this fact, thus not bringing it within the literal content of this statement. back
United States ex rel. TVA v. Welch, 327 U.S. 546, 551–52 (1946). Justices Stanley Reed and Felix Frankfurter and Chief Justice Harlan Stone disagreed with this view. Id. at 555, 557 (concurring). back
Welch, 327 U.S. at 552. back
See Berman, 348 U.S. at 32 ( “The role of the judiciary in determining whether that power [of eminent domain] is being exercised for a public purpose is an extremely narrow one.” ). back
Rindge Co. v. L.A. Cnty., 262 U.S. 700, 709 (1923); Bragg v. Weaver, 251 U.S. 57, 58 (1919); Berman, 348 U.S. at 33. Midkiff, 467 U.S. at 242–43 ( “When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings . . . are not to be carried out in federal courts.” ) back
Clark v. Nash, 198 U.S. 361 (1905); Mt. Vernon-Woodberry Cotton Duck Co. v. Ala. Interstate Power Co., 240 U.S. 30, 32 (1916). back
Berman, 348 U.S. at 32. back
Id. at 32–33. back
Brown v. Legal Found. of Wash., 538 U.S. 216, 232 (2003). Reasonable user fees are not takings that necessitate just compensation. See United States v. Sperry Corp., 493 U.S. 52 (1989) (holding that a 1% user fee deducted from awards granted by an international tribunal to cover the costs of administering that tribunal did not constitute a taking). back
E.g., Kohl v. United States, 91 U.S. 367 (1876) (public buildings); New Orleans Gas Co. v Drainage Comm’n, 197 U.S. 453 (1905) (city drainage system); Chi., M., & St. P. Ry. v. City of Minneapolis, 232 U.S. 430 (1914) (canal); Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897) (condemnation of privately owned water supply system formerly furnishing water to municipality under contract); Mt. Vernon-Woodberry Cotton Duck Co. v. Ala. Interstate Power Co., 240 U.S. 30 (1916) (land, water, and water rights condemned for production of electric power by public utility); Dohany v. Rogers, 281 U.S. 362 (1930) (land taken for purpose of exchange with a railroad company for a portion of its right-of-way required for widening a highway); Del., L. & W. R.R. v. Town of Morristown, 276 U.S. 182 (1928) (establishment by a municipality of a public hack stand upon driveway maintained by railroad upon its own terminal grounds to afford ingress and egress to its patrons); Clark v. Nash, 198 U.S. 361 (1905) (right-of-way across neighbor’s land to enlarge irrigation ditch for water without which land would remain valueless); Strickley v. Highland Boy Mining Co., 200 U.S. 527 (1906) (right of way across a placer mining claim for aerial bucket line). In Mo. Pac. Ry. v. Nebraska, 164 U.S. 403 (1896), however, the Court held that it was an invalid use when a state attempted to compel, on payment of compensation, a railroad, which had permitted the erection of two grain elevators by private citizens on its right-of-way, to grant upon like terms a location to another group of farmers to erect a third grain elevator for their own benefit. back
E.g., Shoemaker v. United States, 147 U.S. 282 (1893) (establishment of public park in District of Columbia); Rindge Co. v. L.A. Cnty., 262 U.S. 700 (1923) (scenic highway); Brown v. United States, 263 U.S. 78 (1923) (condemnation of property near town flooded by establishment of reservoir in order to locate a new townsite, even though there might be some surplus lots to be sold); United States v. Gettysburg Elec. Ry., 160 U.S. 668 (1896), and Roe v. Kansas ex rel. Smith, 278 U.S. 191 (1929) (historic sites). When time is deemed to be of the essence, Congress may take land directly by statute, authorizing procedures by which owners of appropriated land may obtain just compensation. See, e.g., Pub. L. No. 90- 545, § 3, 82 Stat. 931 (1968), 16 U.S.C. § 79 (c) (taking land for creation of Redwood National Park); Pub. L. No. 93-444, 88 Stat. 1304 (1974) (taking lands for addition to Piscataway Park, Maryland); Pub. L. No.
, § 10002 (1988) (taking lands for addition to Manassas National Battlefield Park). back
348 U.S. 26, 32–33 (1954) (citations omitted). Rejecting the argument that the project was illegal because it involved the turning over of condemned property to private associations for redevelopment, the Court said:

Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. The public end may be as well or better served through an agency of private enterprise than through a department of government—or so the Congress might conclude.

Id. at 33–34 (citations omitted).

Berman, 348 U.S. at 32–33. back
In 2005, the Court equated public use with “public purpose.” Kelo v. City of New London, 545 U.S. 469, 480 (2005). back
467 U.S. 229, 243 (1984). back
Id.. back
Id.. back
Id. at 240. See also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014 (1984) (required data disclosure by pesticide registrants, primarily for benefit of later registrants, has a “conceivable public character” ). back
545 U.S. 469 (2005). back
Kelo, 545 U.S. at 487. back
Written by Justice Sandra Day O’Connor, and joined by Justices Antonin Scalia and Clarence Thomas, and Chief Justice William Rehnquist. back
Kelo, 545 U.S. at 501. back