May 5, 2006

Eminent domain had long been considered settled law.  The Fifth Amendment to the Constitution provides: "Nor shall private property be taken for public use, without just compensation."  This recognizes that private property can be taken if just compensation is paid.  The right to take property, provided the state pays the property owner, is considered an attribute of sovereignty.
 
At the groundbreaking ceremony Tuesday for the TKTS booth (which sells half-price theatre tickets on the day of the performance) in Father Duffy Square (47th Street and Broadway), the mayor made a strong defense of eminent domain.  He called it a basic governmental power, without which there would be no Central Park or many other great public works.  The mayor termed essential to the economic growth of the city.
 
The Kelo case upheld the power of municipalities to use eminent domain for economic development.  The majority held that local governments should be afforded wide latitude in seizing property, and should have the right to make land use decisions of a local nature.  Justices Stevens, Kennedy, Souter, Breyer, and Ginsburg comprised the five-justice majority.  Chief Justice William Rehnquist, along with Justices O'Connor, Rehnquist, Scalia and Thomas were the four dissenters.  The advent of Chief Justice Roberts and Justice Alito would not have affected the Kelo result since they succeeded Chief Justice Rehnquist and Justice O’Connor, both of whom were in the minority in the case.
 
The Kelo decision irritated Congress and led to negative newspaper editorials.  This set off a flurry of bills to limit eminent domain to public works and not to allow its use for economic development.  A restrictive bill was passed by the House with 376 votes in favor and only 38 dissenters, including Congressman Jerrold Nadler.  Another Manhattan representative, who like Nadler, was present at the TKTS ceremony, Congresswoman Carolyn Maloney, did not object to the bill.  The Senate passed a more moderate bill, but with similar intent.
 
This case illustrated the principle that "hard cases make bad law."  The condemned buildings were attractive private homes that were taken to build housing at higher density and commercial space, as part of a general plan to redevelop an area of New London known as Fort Trumbull, where the Pfizer Corporation was building a plant.
 
In his remarks, Mayor Bloomberg said that it would have been impossible for the City of New York to redevelop Times Square, or complete any major project, without eminent domain.  There will always be a holdout landowner, who may own a small parcel on the site, who will not sell either for sentimental reasons or because he wants an extortionate price.
 
The use of eminent domain is essential for municipally guided development, yet one must be careful to see that the power of the state is not used merely to substitute one private landowner for another.  The majority in Kelo held that such land use decisions should be made by local government.  Many legislators feel that additional protection is needed for private property.  The laws proposed, however, are quite restrictive.  One would deny the use of federal funds in any project where eminent domain is used, and blacklist the offending city for several years.  This would impede cities in their efforts to improve blighted areas. 

In the absence of an objective standard for taking property, the matter is probably best left to officials who are accountable to the voters for their decisions.
 
Mayor Bloomberg has exercised leadership in speaking out on this issue and bringing it to public attention.  In recent weeks, he has held a gun-control summit at Gracie Mansion, and urged the State of New York to collect DNA samples from all convicted criminals.  That proposal has so far been resisted by Assembly Democrats who believe that some of their constituents could be adversely affected if their DNA were readily available to the authorities.
 
These Mayoral activities portend a more energetic second term than we had predicted.  We are one-third of the way around the first lap of a four-lap race.  The first two or three laps are times for achievement, because politics sets in as elections approach, and people do strange things when they believe that their futures are at stake. 

The mayor's non-candidacy in 2009 cuts two ways.  He is relieved from the necessity of catering to current opinion and is free to do what he thinks is best for the city in the long run.  On the other hand, people know that he will be out of City Hall in 2010, which lessens the fear factor affecting their conduct with regard to his wishes.

All in all, at this time, things are looking up for the city.  The budget surplus, the spring weather and the absence of bitter controversy all contribute to the positive mood many New Yorkers feel.  Enjoy it while it lasts.