Most of the people reading this were unfortunately around to witness what may have been the worst ruling by the Supreme Court of this generation, that being Kelo v. City of New London. The Rehnquist Court, in a 5-4 decision that seemed destined to have sad and far reaching consequences, essentially rewrote the takings clause of the Fifth Amendment to replace the idea of “public use” with the more vague and corruptible concept of “public benefit” where the “benefit” could be decided by the government entity doing the taking. (It should be noted that Chief Justice Rehnquist was not present for the oral arguments in Kelo owing to health problems, and eventually voted against the decision. It was generally the liberal justices on the court that passed it.)
I have to wonder if that decision won’t be rearing its ugly head yet again with a pair of items highlighted by Ilya Somin at The Volokh Conspiracy. It seems that two locations – one of them being the nation’s capital – may be looking at invoking the takings clause to “benefit” the public with… new sports stadiums.
Nick Sibilla of the Institute for Justice describes Sacramento and Washington, DC’s ill-advised plans to use the threat of eminent domain to acquire property to build sports stadiums on:
In less than a week, two capital cities are preparing to use eminent domain to build professional sports stadiums. Talk about foul play.
The Sacramento city council voted 7-2 on August 13 to help the Sacramento Kings negotiate with the owner of a Macy’s. As the Sacramento Bee points out, “The city’s involvement in the talks carries with it a key negotiating tool: the threat of seizing control of the property through eminent domain.” That Macy’s Men Store is the last property the Kings have yet to acquire for the arena and may be condemned if negotiations fail. But just because they’re called the Kings doesn’t mean they should have the right to seize
Over in Washington, D.C., officials are prepared to authorize eminent domain to build a new stadium for the DC United, the worst team in Major League Soccer. This 20,000 seat stadium is expected to cost $300 million, with half of that coming out of the taxpayers’ pockets. Yet the team sold for $50 million in 2012. In other words, the United will be getting a brand new stadium that’s worth six times as much as the team itself.
Apparently we have arrived in the brave new world where the government can seize the property of private businesses such as Macy’s or of individual homeowners and declare that it’s in the public interest to put a privately owned soccer stadium in its place. And this assertion is made in the face of historical evidence, as Somin points out, that sports stadiums almost always turn out to be economic losers for the communities where they are constructed.
But even if the franchise in question wound up showing a profit and bringing some money into the community, it leaves us with the legacy of Kelo and the concept of use versus benefit. What of the people who have no interest in the Kings or in Washington’s craptastic kickball team? What use or benefit is directly coming their way beyond the nebulous “benefit” that any new business venture trickles into a community through increased traffic and possibly some jobs for others? A sports stadium is not a road or a bridge or a public courthouse or water treatment or sewage facility. It’s a private enterprise designed to deliver a profit to its owners and investors, even if some entertainment to the masses is on tap.
The takings clause is permanently one of the biggest, most tempting pieces of fruit in front of governments, leading to mischief whenever they feel they can get away with it. And abuse of this needs to stop. Sadly, the courts have made it easier rather than harder to keep it in check.