Document Type
Article
Publication Date
2003
Publication Information
71 Geo. Wash. L. Rev. 934 (2003).
Abstract
Government officials regularly use the power of eminent domain to benefit private entities, and just as regularly justify their actions with assertions about the need to promote "economic development." Rather, the remarkable thing about these cases is that the courts questioned the government's right to do so. In Hawaii Housing Authority v. Midkiff, the United States Supreme Court reaffirmed that the Fifth Amendment demands broad deference to a government's decision to exercise the power of eminent domain. Midkiff makes clear that "public use" challenges are subject to rational-basis review. That is, so long as a taking can be justified by some conceivable public purpose, it will be upheld. Yet in each of the cases mentioned above, a court put the government to its proof-requiring a demonstrated connection between the challenged taking and the particular purpose used to justify it. In so doing, these courts refused to allow the government to avail itself of the "conceivability" safety valve provided by rational-basis review, a standard that requires approval of any taking that might serve the public interest in some theoretically possible way.
Recommended Citation
Nicole S. Garnett,
The Public-Use Question as a Takings Problem,
71 Geo. Wash. L. Rev. 934 (2003)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1806
Comments
Abstract taken from introduction.