The big complaint about the recent
Kelo vs. New London eminent domain decision by the SCOTUS is that it seemed unlimited- that the only justification necessary to employ eminent domain, re:
Kelo, was that it could conceivably benefit the city's tax base. Or rather, that the application of eminent domain be left entirely to the whim of local government. On this basis, many liberals were and are exceedingly angry about the decision, including myself. It seemed about as corp-friendly as a law could be.
However, this doesn't seem to be the case. Whenever these legal issues come up, I check out the legal blogs- and now I find that was an exceedingly good idea. I'm basically paraphrasing this next bit from SCOTUSblog.
There wasn't just the majority opinion and the dissent in Kelo, there was a concurring opinion by Justice Kennedy. This concurring opinion does, in fact, place limits that can be argued in court on the application of eminent domain. Though it's not the majority opinion, it can be considered valid because Justice Kennedy's vote can be said to be 'controlling'.
[quote after the jump]
Kennedy was not so reticent. Although he joined the Stevens opinion in full, it is clear from his concurring opinion that he sensed that the prospect of abuse was more evident than Stevens had acknowledged. Since his vote was necessary for the city of New London to prevail, his separate opinion in some sense may be said to be controlling.
According to Kennedy, if an economic development project favors a private developer, "with only incidental or pretextual public benefits," that would not be tolerated even by applying the minimum standard of "rational basis review."
His opinion elaborated: "There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause." He called it a "demanding level of scrutiny," thus indicating that it was something like "rational basis-plus."
He did not spell out such a heightened standard further, saying the Kelo decision "is not the occasion for conjecture as to what sort of cases might justify a more demanding standard."
Which, in my reading, means that courts are allowed to apply the laugh test to an eminent domain decision, which didn't really seem possible under Kelo's majority opinion. I'm not a lawyer (or even close!) though, so take that with a grain of salt.