Sen. Cornyn's Daily Question for Judge Sotomayor - Question 13

Statement

Does the Takings Clause provide any limits on the power of the government to take private property?

Explanation: The Takings Clause of the Fifth Amendment states that private property cannot be taken for public use without just compensation. It has long been understood to mean that private property cannot be taken for private use at all, and that private property can be taken for public use only if the owner receives adequate payment. Under this framework, the distinction between private use and public use is critical: Because the government can only take property for public use, the meaning of "public use" determines the scope of the government's power to take private property.

Unfortunately, the Supreme Court has adopted a very broad interpretation of "public use." As we saw in the recent decision of Kelo v. New London, 545 U.S. 469 (2005), the Court is willing to defer to most claims that a taking was for public use without subjecting the claim to considerable scrutiny. However, even the Kelo case recognized that it was "perfectly clear" that "the sovereign may not take the property of A for the sole purpose of transferring it to another private party B." Further, the Court acknowledged that "mere pretext of a public purpose" is not enough to allow the taking "when its actual purpose was to bestow a private benefit."

Judge Sotomayor's record raises real questions about her commitment to enforcing the Takings Clause. In Didden v. Village of Port Chester, 173 Fed. Appx. 931 (2d Cir. 2006), the Second Circuit was confronted with exactly the kind of outrageous taking that Kelo indicates would be prohibited. In that case, the government essentially handed over the power of eminent domain to a private developer. The private developer then used the power of eminent domain to enrich himself. However, the Second Circuit panel that included Judge Sotomayor gave the merits of the Taking claim almost no attention. Inexplicably, the opinion issued by the panel simply concluded in a single sentence that no relief was available under Kelo.

In my opinion, the Takings Clause is a vital check on the power of government to interfere with private property. The opinion that Judge Sotomayor joined in Didden v. Village of Port Chester raises important questions about whether Judge Sotomayor shares my view. I hope the upcoming hearings will provide Judge Sotomayor with an opportunity for her to explain her views of the Takings Clause and the opinion she joined in Didden.

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