Ilya Somin

  • June 23, 2015
    BookTalk
    The Grasping Hand
    "Kelo v. City of New Lond" and the Limits of Eminent Domain
    By: 
    Ilya Somin

    by Ilya Somin, law professor at George Mason University and an adjunct scholar at the Cato Institute. He writes regularly for the popular Volokh Conspiracy Blog, affiliated with The Washington Post.

    Ten years ago today, in Kelo v. City of New London, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner for purposes of promoting “economic development.” Although the Fifth Amendment only permits the taking of private property for  “public use,” the Court ruled that  virtually any potential public benefit qualifies as such, even if the government fails to prove that the supposed benefit will ever actually materialize. My new book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, is the first work by a legal scholar about one of the Supreme Court’s most controversial modern decisions.

    In the book I argue that Kelo was a grave error. In chapters 2 and 3, I discuss why economic development and “blight" condemnations that transfer property to private interests, are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. Though the ruling was consistent with previous precedents, the Supreme Court can and should have either overruled those badly flawed prior decisions or at least limited their scope (as Justice Sandra Day O’Connor advocated in her dissent).

    These types of condemnations victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Since the Supreme Court first ruled that a “public use” can be almost anything the government says it is, hundreds of thousands of people have lost homes or small businesses to  blight and economic development takings. Most were poor, racial or ethnic minorities, or lacking in political influence. Kelo itself exemplifies some of these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them, including Pfizer, an influential pharmaceutical firm that expected to benefit from the condemnations.  Moreover, the city's poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The only “development” produced so far consists of some improvised shelters constructed for the cats, by neighborhood residents.
     
    The Supreme Court's unpopular ruling triggered an unprecedented political reaction. Polls showed that over 80 percent of Americans oppose the ruling, a sentiment that cut across partisan, ideological, and racial lines. This is one of the rare issues where Ralph Nader, Rush Limbaugh, and the NAACP, were all on the same side.

  • May 21, 2015
    Guest Post

    by Ilya Somin, Professor of Law, George Mason University School of Law; author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press).

    The Obama administration’s immigration policy deferring deportation for more than four million illegal immigrants has been the focus of extensive constitutional debate since it was announced last fall. One conservative federal trial judge has ruled that the policy is unconstitutional, and another has concluded that it violates the Administrative Procedure Act, on the basis of arguments that suggest it is likely unconstitutional as well.  Despite these rulings, the Obama policy is constitutional, and appellate courts would do well to uphold it. Ironically, the case for it is particularly strong if we accept two principles that many of the policy’s conservative critics strongly support in other contexts: the unitary executive and limiting the scope of congressional power  as close as possible to its original meaning. At the same time, the Obama policy highlights the dangers posed by executive discretion in a world where there is far more federal law than any administration can effectively enforce.

    In many ways, the administration policy is simply an exercise of longstanding executive discretion in deciding when to enforce federal laws. There are more than 11 million illegal immigrants in the United States, and no administration is likely to deport more than a small fraction of them. Similarly, scholars estimate that a majority of Americans have violated federal criminal law at some point in their lives. Only a small fraction of these offenders are ever prosecuted. The executive generally has broad discretion to decide which suspected lawbreakers to go after and which ones to ignore.

    Many of  the administration’s critics claim that, by choosing not to enforce deportation against a large category of aliens, Obama is violating the Take Care Clause of the Constitution, which requires the president to “take care that the laws are faithfully executed.” But whatever else that Clause might mean, it surely does not require the president to enforce every federal law to the hilt, especially in a world where it would be literally impossible to even come close to doing so. Otherwise, virtually every president would be in constant violation of the Clause.

    Both judicial rulings against the Obama policy emphasize that it goes beyond ordinary executive discretion because it replaces “case by case” discretion with a general rule imposed by the president that categorically excludes broad categories of aliens from deportation. The categories in question cover numerous undocumented migrants who are either parents of U.S. citizens or permanent residents, or entered the U.S. as children. As Judge Arthur Schwab put it in the first ruling, the policy “provides for a systematic and rigid process by which a broad group of individuals will be treated differently from others… rather than case-by-case examination.” But the difference between case by case examination and categorical rules is one of degree rather than kind. Unless case by case discretion is completely arbitrary, it must be guided by some sort of generalizable criteria, such as the severity of the offense or the danger posed by the offender. And if such general rules can be applied by low-level law enforcement offenders handling particular cases, they can also be applied systematically by the president. After all, lower-level law enforcement officials are ultimately merely the president’s agents and subordinates.

  • February 16, 2011
    National Senior Citizens Law Center Public Policy Counsel Simon Lazarus and George Mason University law school professor Ilya Somin debate the constitutionality of the Affordable Care Act's individual responsibility provision for ACSblog. Their debate coincides with continued hearings in Congress over the constitutionality of the provision that requires some Americans to maintain health care insurance starting in 2014.

    Professor Somin, who opens the debate, says the provision is unconstitutional on a number of fronts. Specifically Somin says Congress's power to regulate interstate commerce does mean it has the power to require people to purchase health care insurance. The professor said not purchasing health care insurance is "not commerce and it's not interstate, and therefore it violates both the requirements that the Constitution imposes for an exercise of power under that clause."

    Lazarus, author of the recent ACS Issue Brief "The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government," said the provision was well within Congress's power to enact, and that if the Supreme Court were to rule otherwise it would mean the Constitution "gives unelected judges the authority to impose a straightjacket on Congress's" ability to tackle national economic concerns. Watch their entire debate below or here.

    Congress also heard more debate this morning over the Affordable Care Act's provision, with a House Judiciary Committee hearing that featured two opponents of the provision and one supporter. Virginia Attorney General Ken Cuccinelli who lodged one of the first lawsuits against the health care reform law and Georgetown University Law Center professor Randy Barnett testified against the provision. Walter Dellinger, former Acting U.S. Solicitor General, and chair of Appellate Practice at O'Melveny & Myers LLP, testified in favor of the provision. Earlier this month, the Senate Judiciary Committee conducted a similar hearing.

    In written testimony submitted to the Committee, Dellinger said the "assertion that the national Congress lacks the constitutional authority to adopt these regulations is a truly astonishing proposition. When these lawsuits reach their final conclusion, that novel claim will be rejected." Dellinger continued that there "are so many ways that the minimum coverage requirement is an appropriate exercise of Congress's power to regulate the national economy that it is difficult to know where to begin. Let me start with the undoubted proposition that Congress can regulate the terms and conditions upon which health insurance is bought and sold, making it indisputable that Congress can prohibit insurance companies from denying coverage to those with pre-existing conditions."

    Barnett, as he did before the Senate Judiciary Committee, warned that if the individual responsibility provision were upheld by the courts it would create a tyrannical federal government. "If this proposition is upheld," Barnett told the House panel, "I submit, the relationship of the people to the federal government would fundamentally change: no longer would they fairly be called ‘citizens;' instead they would more accurately be described as ‘subjects.'"

    On March 3, ACS will host an event discussing the legal challenges to the health care law featuring a keynote address by former Senate Majority Leader Thomas Daschle and a panel discussion including Dellinger, Lazarus and Somin.