It is black-letter law that the U.S. Supreme Court’s takings doctrine presupposes exercises of eminent domain are in pursuit of valid public uses that require just compensation. But, neither federal doctrine nor the text of the Takings Clause offers any additional constraints. The story of the Supreme Court’s takings jurisprudence is, in other words, incomplete and deserves reexamination. However, the usual protagonists, such as the Supreme Court or federal courts, are not central to this Article’s reexamination. Instead, this Article’s narrative is federalism, its characters are state courts, and its script is state constitutions.
In the post-Kelo v. New London era, state legislatures and courts diverged from federal takings doctrine to expand property protections beyond the constitutional floor set by the Supreme Court. Property scholars, however, have paid less attention to a doctrinal lacuna left behind after the nationwide state legislative backlash: state courts’ failure to recognize an implicit obligation of local municipalities to satisfy “general welfare” principles when taking private property for economic development purposes as a matter of state constitutional law. The proposition of this Article is simple: state public use clauses should be understood to equate with state police power general welfare principles. This is what I call “state constitutional general welfare doctrine.”
This cross-pollination of police power and takings doctrine also reveals that takings doctrine is highly fluid and malleable, capable of incorporating a variety of constitutional doctrines, such as substantially advances tests, exactions doctrine, and equal protection doctrine, to provide greater alternative conceptions of protections to private property. The commingling of state police power principles, such as general welfare, as equating with “public use” is just another example of takings doctrine’s ability to mold in a manner to provide enhanced protections to private property beyond the Supreme Court’s constitutional bottom.
INTRODUCTION
Takings law is flexible and fluid. The Supreme Court’s takings jurisprudence is no stranger to creative commingling of constitutional standards by state and federal courts in search of the right mix of standards and tests to advance the doctrine. This rich doctrinal history of intermingled constitutional standards is apparent in the substantially advances, exactions, and equal protection doctrines.1 For example, the Court’s previous debates over due process inquiries and takings in Agins v. City of Tiburon2447 U.S. 255 (1980). and Lingle v. Chevron3544 U.S. 528 (2005). support the proposition that mixing constitutional doctrines may be necessary to impose additional constraints on the Court’s public use test. In Agins, the Court found that government regulation of private property would give rise to a taking if the regulation “does not substantially advance legitimate state interests.”4 The “substantially advances” test requires an analysis into whether regulations substantially advance legitimate state interests or deny a property owner economically viable use of his land.5 Of course, this requires weighing competing private and public interests. And prior to the Court’s ruling in Lingle, which foreclosed due process inquiries in takings,6 a substantial number of state courts engaged in this cross-pollination of constitutional doctrines.
The Court in Lingle noted that the “apparent commingling of due process and takings inquiries” was improper,7 because due process is not “tethered . . . . to the text of the Takings Clause.”8 While this was arguably the right doctrinal move by the Court, the commingling of due process and takings doctrine by state courts for decades prior to Lingle arguably supports the proposition that state courts could normatively “tether” general welfare principles to public use inquiries as a matter of state constitutional law.
The Court’s exactions doctrine has also been cross-pollinated by state courts who have “put the government to its proof—requiring a demonstrated connection between the challenged taking and the particular purpose used to justify it,”9 similar to the Nollan and Dolan tests.10 The Illinois Supreme Court, in Southwestern Illinois Development Authority v. National City Environmental, L.L.C.,11 for example, intermingled the heightened standard of review employed in the Supreme Court’s Nollan and Dolan exaction jurisprudence to find an economic development taking unjustifiable where the property was transferred from one private entity for the benefit and use of another private entity.12
The Court’s “class of one” equal protection jurisprudence has combined with takings doctrine to create a unique mix of equal protection and takings protections to private property. The Court’s ruling in Village of Willowbrook v. Olech,13 holding that a homeowner could assert equal protections claims “as class of one” in the zoning context, has been employed by litigants in state court in the eminent domain context.14 The mixing of these doctrines creates an intriguing argument that “if [private] property is singled out for eminent domain” and other properties are not, then the homeowner can bring suit to “challenge the arbitrariness of the decision to take the property” as a violation of equal protection.15 A few state courts, particularly in New York, have entertained this claim by plaintiff property owners seeking to invalidate exercises of eminent domain on the theory that properties located within a redevelopment project had been intentionally treated differently than other similarly situated properties.16
Absent from this account of cross-pollination is tethering state constitutional general welfare principles with state constitutional public use tests. Federal takings doctrine and the text of the Fifth Amendment Takings Clause offer limited constraints on the public use vein of the Takings Clause. As a result, this Article explores federalist dimensions of takings law to argue for an additional mode of takings protections that relies upon state courts and state constitutions as its foundation, not to supplant, but to supplement, current takings doctrine. The proposition of this Article is simple: State public use clauses should be understood to equate with state general welfare principles as a matter of state constitutional law. This is what I call “state constitutional general welfare doctrine.”
Underlying this federalist narrative are familiar legalists. Justice Louis Brandeis once wrote, “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”17 Indeed, his words were followed up years later by Justice William Brennan, who urged state courts to play a greater role in protecting constitutional rights by relying on state constitutions as more effective guarantors of individual rights than the United States Constitution.18 In the context of takings law, the notion of federalism is ever-present, but property scholars spend a pittance of time reflecting on federalist dimensions in takings doctrine.19 The Court’s recent decision in Murr v. Wisconsin, however, brought federalism to the forefront of the Court’s most recent permutation of its takings doctrine. In the Chief Justice John Roberts’s dissent, he noted, “[o]ur decisions have, time and again, declared that the Takings Clause protects private property rights as state law creates and defines them.”20 Indeed, property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.”21
On the other hand, the last time the Court’s public use doctrine was explicitly linked to federalism concerns in eminent domain takings was its Kelo v. New London ruling.22 There, the Court upheld economic development takings as a justifiable public use. Justice Stevens explained that “nothing in [the] opinion precludes [state courts and state legislatures] from placing further restrictions” on “public use” than the federal minimum “as a matter of state constitutional law.”23 Those remarks generated substantial eminent domain reform at the state-level.24 Most state legislatures amended or enacted new eminent domain statutes to bar or restrict takings for economic development.25 State courts handed down rulings prohibiting takings with a private motive.26 However, a slew of blight removal exceptions remained intact.27 As Ilya Somin suggests, “the political backlash to Kelo has provided the same level of protection for property owners as would a judicial ban on economic development takings.”28
After the Kelo decision, less than a quarter of the states amended their takings clauses to provide further protections from economic development takings.29 Most of these amendments paralleled the language state legislatures had inserted into eminent domain statutes to bar or restrict economic development takings.30 Few state courts have outright banned economic development takings as a matter of state constitutional law.31 Indeed, state canons played a limited role in the Kelo revival of federalism in takings, even though state legislatures were aggressive in their pursuit of the electorate’s preferences for stronger protections from government expropriation. Local municipalities, all the while, can still skirt the economic development bans and limitations by condemning land under the veil of “blight removal.”32
In a post-Kelo era, scholars have paid less attention to another implication of state court divergence and federalism: state courts’ failure to recognize an implicit obligation for local municipalities to satisfy “general welfare” principles as part of the public use test when taking private property for economic development purposes.33 In other words, scholars and jurists, along with state legislatures, neglected to focus attention to an area of state constitutional law that would likely have offered greater protections to economic development takings beyond legislative amendments.
This doctrinal lacuna, left in the wake of the post-Kelo backlash, deserves exploration. The Court’s language on the relationship between “public use” and the “police power” in Berman v. Parker, Hawaii Housing Authority v. Midkiff, and Kelo is instructive for establishing the framework for this Article’s doctrinal pivot to cross-pollinate state police power and general welfare principles with the public use test.
In Berman, by upholding the District of Columbia’s eminent domain power for the purpose of urban redevelopment, the Court noted that the
[p]ublic safety, public health, morality, peace and quiet, law and order . . . are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it. . . . The concept of the public welfare is broad and inclusive.34
The Court’s opinion in Midkiff, decades later, expressly tied the two concepts together, stating that the “‘public use’ requirement is . . . coterminous with the scope of a sovereign’s police powers.”35 Justice O’Connor went further in Midkiff, stating that there is, nonetheless, “a [limited] role for courts to play in reviewing a legislature’s judgment of what constitutes a public use, even when the eminent domain power is equated with the police power.”36 Likewise, Justice Stevens channeled Justice O’Connor’s sentiments on the role of courts in takings review in his Kelo opinion. There, he invoked a “strong theme of federalism” by “emphasizing the ‘great respect’ that [the Supreme Court] owe[s] to state legislatures and state courts in discerning local public needs” in eminent domain determinations.37 Justice Stevens then stated that “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. . . . as a matter of state constitutional law.”38
There is, in other words, a place for state courts to constrain exercises of police power, including eminent domain takings. Justice Stevens’s invocation of state constitutional law as a vehicle for placing stronger restrictions on public use is where this Article sets out to propose a “state constitutional general welfare doctrine.”
State courts do have “a role . . . to play in reviewing a [state] legislature’s judgment of what constitutes a public use”39 and nothing precludes state courts from interpreting state “public use” to equate with the “catch-all” “general welfare” requirements under state constitutional law.40 It is telling that Justice O’Connor had to walk back her broad and sweeping language in Midkiff twenty years later in Kelo, tying together the police power and public use in unison, when she noted that the majority opinion in Kelo “demonstrates why, when deciding if a taking’s purpose is constitutional, the police power and ‘public use’ cannot always be equated.”41 Justice O’Connor proceeded to explain that “[t]he trouble with economic development takings is that private benefit and incidental public benefit are, by definition, merged and mutually reinforcing” and that any benefits to a private corporation or developer would be difficult to disaggregate from the promised public gains in taxes and jobs.42
In other words, what Justice O’Connor seems to have done in her majority opinion in Midkiff and dissent in Kelo is to broaden “public use” to equate with police powers, except where there is an identifiable incidental public benefit to a developer who promised additional taxes and jobs. The problem with this reasoning is that there are few, if any, constitutional constraints on takings like economic development that fall outside the scope of O’Connor’s envisioned “police power” takings at issue in Berman and Midkiff.
The post-Kelo statewide backlash is evidence to suggest that the role of state constitutions is to constrain the exercise of the police power and the public use requirement for eminent domain by treating the public use question as nothing more than an inquiry into the “general welfare” principles under state constitutional law. There is precedent for state courts applying general welfare principles as a constraint on exercises of police power in the zoning context that supports this Article’s proposition.
* * * * *