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The controversial 2005 Supreme Court case Kelo v. City of New London has several things in common with the current case that will decide the fate of health care reform.

1) Anthony Kennedy is the swing vote.

2) Both cases involve the use of private enterprise for public purpose.

The majority opinion in Kelo by John Paul Stevens held that legislatures are due a wide deference in their judgment of the public welfare, declining to define a bright-line rule that would create an "artificial restriction on the concept of public use".  The concurring opinion by Justice Kennedy applies a rational-basis standard of review (a level of scrutiny that only requires that government action have a non-arbitrary reason, but not necessarily an intelligent reason) so that private parties can benefit from government action so long as it is not the primary purpose.

The minority opinion by Sandra Day O'Connor opines that the decision renders the term "public use" in the Fifth Amendment's Taking Clause practically meaningless.  It criticizes Kennedy for relying upon an "as-yet-undisclosed test" for whether government action favors private parties to an unacceptable degree.

Although Kelo deals with eminent domain, I see similarities to the legal debate over health care reform.  Just as the conservative point of view was concerned that Kelo gave legislatures practically unlimited ability to take and re-purpose private property, so, too, do conservatives now voice concerns that upholding the Patient Protection and Affordable Care Act will give Congress practically unlimited power through an expansive view of the Interstate Commerce Clause.

I am not a lawyer or a legal scholar (and linking to Kelo is apparently a bit of a novel idea, so perhaps there is value in being an outsider) , so I am not trying to make a legal argument that Kelo is a precedent that should be cited.  Rather, I'm pointing out some similarities and suggesting that an argument to uphold health care reform could have a philosophical resemblance to Kelo, especially concerning the limits on the power of government.  

Perhaps, it is necessary to explicitly refute the need for a bright-line rule that strongly defines the boundaries of the Commerce Clause.  I tend to have a preference for balancing tests rather than bright-line rules (a dichotomy I characterize as Breyer vs. Scalia), but I can see how that idea is disconcerting to others who want clear boundaries on government power in other areas.  I can even see how bringing up this comparison might make some on the left, especially those who weren't too enthusiastic about the mandate to begin with, a bit less certain that the PPACA should be upheld.  Still, I wonder if Justice Kennedy can reconcile voting against the mandate (if he chooses to do so) with voting for Kelo.

[I tend to feel that Kelo was correctly decided.  I will commit the logical fallacy of appealing to authority and point out that at least a couple of people agree with me on that point.]

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Comment Preferences

  •  Great. The RW absolutely (0+ / 0-)

    despises Kelo.  Basing the upholding of the ACA on Kelo will drive them batshit insane (if they aren't already there).

    Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

    by Its the Supreme Court Stupid on Mon Apr 09, 2012 at 04:50:06 PM PDT

    •  so do a lot of US. (4+ / 0-)
      Recommended by:
      1918, Zornorph, Samulayo, nextstep

      The idea that government can take your property and your neighborhood, not for some urgent necessity such as building a firehouse, or some important public purpose such as building an airport, but in order to give it to f---ing Wal Mart or some other corporate monster for private profit, is just way beyond disgusting.

      Any Democrat who supports it is a corporate ass-kisser who should be wearing Executive Climber knee-pads.  

      "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

      by G2geek on Mon Apr 09, 2012 at 06:45:39 PM PDT

      [ Parent ]

      •  "way beyond disgusting" (1+ / 0-)

        Is not a legal standard.  Once your house is taken, and you get compensation, why give a shit whether it's a Walmart or firehouse.  What if the state waits a year, decommissions the firehouse and sells it to Walmart.  Property is transferrable.  The decision to actually use eminent domain for this is the sellout; a lot of sell outs are perfectly constitutional.  The opposing view treats he words public use as some kind litmus is test, where anything the judge doesn't like can be deemed not public use. Baseball stadiums are classic examples of recognized public use that make no economic sense.  Does law become a question of whether the judge is a baseball fan?  (but see Flood v. Kuhn.) In the economic sphere, definitions of public use (and substantial effects on commerce) are better defined by democratically accountable branches.  Unless the argument is against eminent domain full stop, which has no constitutional traction.  The right objects, as they object to the mandate, because they want to build a body of case law that says the government's ability to regulate the economy is limited and that there are implied economic rights running counter to what the government might wish to do.  Liberal critics of Kelo miss the forest for the trees.  The floodgates the decision supposedly openened haven't happened, largely because Kelo upheld what was the law in most places so little changed.  I'd rather have broad regulatory power even if it means nice ladies in Connectituct get screwed from time to time.

        The study of law was certainly a strange discipline. -- Yukio Mishima

        by Loge on Mon Apr 09, 2012 at 10:50:54 PM PDT

        [ Parent ]

        •  and that is exactly how you LOSE. (0+ / 0-)

          Quoth yourself:  "I'd rather have broad regulatory power even if it means nice ladies in Connectituct get screwed from time to time."

          How'd you like to campaign on that as a slogan, eh?

          Vote for Loge and screw the little old ladies!  Right!

          And "regulating" commerce doesn't mean "creating commerce where it didn't exist before" unless you also believe that "catching criminals" means it's OK to create crimes where they didn't exist before," which is a rough description of entrapment.  

          Dude, why are you carrying water for the most detestable elements of the plutocracy?  Trying out for a starring role in a commercial for Executive Climber knee pads?

          Sheesh! the infestation of corporate Democrats around here lately!

          "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

          by G2geek on Tue Apr 10, 2012 at 04:49:36 AM PDT

          [ Parent ]

          •  huh? (0+ / 0-)

            I'd rather not use the power of eminent domain poorly, but I'd also rather not have legal tests that do away with it completely.  Why run against the court when you can run against the city council that was responsible for making the bad decision to begin with?  The only difference is that I accept the consequences of my position -- the Constitution leaves governments free to engage in bad policy because the alternative is to tie the hands of democratic branches.  

            As to the back-handed argument against the mandate, I believe I already explained to you that crime is an inapt analogy as it's not commercial in nature to begin with; that you're mixing up a limitation of power with the enabling clause; and that one doesn't have to justify the mandate as "creating commerce," as it's enough that one already substantially affects an interstate market, as one does.  You don't know what you don't know.

            Here are some more law-school-style hypos, to prove that you either can approve all, reject all, or approve some and reject some on no basis other than policy preference:

            -- slum clearance, where the proposal is to auction off property to build some sort of "new urbanism" thing with street level retail.

            --construction of a new privately-owned contractor facility that almost exclusively serves a state or local government, i.e. an industrial laundry.

            --construction of (a) new hospital to be owned by HCA, (b) a privately-owned rehab clinic.

            --expansion of (a) a charter school, (b) a non-sectarian private school, (c) a parochial school, (d) a new wing of a library for the state bar association that is only open to members and law students.

            -- expansion of a Jewish cemetery.

            -- building a new prison, where the state has a contract with CCA requiring it to operate all facilities.

            -- a case like Kelo, only (a) unemployment in the community is 25%, or (b) the crime rate is 25% higher than in the actual neighborhood.  

            Also feel free to identify which Democrat lost a seat because of Kelo, and beware Republicans claiming to be on the side of the little guy.  Their goal is to get the camel's nose in the tent to eventually do away with all regulation as "regulatory takings."

            The study of law was certainly a strange discipline. -- Yukio Mishima

            by Loge on Tue Apr 10, 2012 at 08:46:50 AM PDT

            [ Parent ]

    •  Kelo (1+ / 0-)
      Recommended by:

      Nothing would make me happier than if Kelo were overturned. Horrible, horrible judgement on that one. Thieves.

      •  Blame the city council, (1+ / 0-)

        The SCOTUS got it right.  Nobody said they had to do that transfer, just that they can after paying compensation.  The opposing view puts unelected judges in the position of deciding what is or is not public use or benefit, and the dissent in Kelo had even less of a standard.

        The study of law was certainly a strange discipline. -- Yukio Mishima

        by Loge on Mon Apr 09, 2012 at 10:54:28 PM PDT

        [ Parent ]

  •  I think there are legitimate similarities (2+ / 0-)
    Recommended by:
    VClib, Anthony de Jesus

    But I think it deserves mention that:

    O'Connor's argument in Kelo is certainly stronger than any of the arguments I've seen against the ACA. O'Connor's argument is grounded in the actual text of a constitutional provision, the Public Use Clause of the Fifth Amendment.

  •  I don't see how it's relevant (1+ / 0-)
    Recommended by:

    There's nothing in the constitution to justify a line drawn between a private pipeline and a private shopping mall.  If using eminent domain for one is unconstitutional, so is the other.  Anything else is legislating from the bench.

  •  a funny coincidence (0+ / 0-)

    I once had an argument with a conservative friend where I actually suggested that he should argue against the ACA based not on his newly-beloved 10th Amendment, but Kelo.
    My suggestion was that Kelo was the clearest illustration not of eminent domain, but corruption - the only beneficiary of New London's action would have been a single, specific individual commercial real estate speculator, not the public at large.
    An argument against the ACA can be made the same way. Requiring everyone to buy insurance is not a necessary or even preferable way to benefit the public. Yes, in all likelihood the general public's health will improve, but it is indisputable that there are far less expensive and more reliable ways to achieve that goal. The only certain beneficiaries of the ACA are the insurance companies.
    My friend did not like the argument. Since it depended on the intent of the action it was not black and white enough.

  •  Eminent domain is a state power, (2+ / 0-)
    Recommended by:
    Samulayo, nextstep

    not just a federal one.  Nobody (in the know) disputes that if the power to mandate health insurance is there under the commerce clause, it can be mandated to buy from , well, private insurance companies.

    But there is something to this -- Kelo was about judicial reatraint, saying we are not going to second guess public benefit.  Here, the court should be restrained about deferring to Congress's identification of the effects of non-insurance on interstate markets and th means to achieve them.  The contrary view posits an unarticulated implied right and gets too much policy in the constitutional analysis.

    The study of law was certainly a strange discipline. -- Yukio Mishima

    by Loge on Mon Apr 09, 2012 at 10:38:23 PM PDT

  •  IIRC, the concern that brought KELO (0+ / 0-)

    failed. So if the health insurance companies fail, that would be nice. May it be so.

    •  Kelo was about state's governmental powers (1+ / 0-)
      Recommended by:

      not Federal government power.

      The Federal government is supposedly one of limited enumerated powers. The defenders of the ACA are required to show that the ACA falls within a limited power.

      State power is not limited so more deference must be given to the state legislatures.

      Kelo sucked ass. The SCOTUS pushed to the responsibility down to the most corrupt levels of governments.

      Justice Thomas's dissent in Kelo was very good.

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