Case 5.6Kelo v City of New London545 U.S. 469 (2005)Ye.docx

Case 5.6
Kelo v City of New London
545 U.S. 469 (2005)
Yes, Actually, They Can Take That Away From You
Facts
In 1978, the city of New London, Connecticut, undertook a
redevelopment plan for purposes of creating a redeveloped area
in and around the existing park at Fort Trumbull. The plan
sought to develop the related ambience a state park should have,
including the absence of pink cottages and other architecturally
eclectic homes. Part of the redevelopment plan was the city’s
deal with Pfizer Corporation for the location of its research
facility in the area. The preface to the city’s development plan
included the following statement of goals and purpose:
To create a development that would complement the facility that
Pfizer was planning to build, create jobs, increase tax and other
revenues, encourage public access to and use of the city’s
waterfront, and eventually “build momentum” for the
revitalization of the rest of the city, including its downtown
area.
The affected property owners, including Susette Kelo, live in
homes and cottages (15 total) located in and around other
existing structures that would be permitted to stay in the area
designated for the proposed new structures (under the city’s
economic development plan) that would be placed there
primarily by private land developers and corporations. The city
was assisted by a private, nonprofit corporation, the New
London Development Corporation (NLDC), in the development
of the economic plan and piloting it through the various
governmental processes, including that of city council approval.
The central focus of the plan was getting Pfizer to the Fort

Trumbull area (where the homeowners and their properties were
located) with the hope of a resulting economic boost that such a
major corporate employer can bring to an area.
Kelo and the other landowners whose homes would be razed to
make room for Pfizer and the accompanying and resulting
economic development plan filed suit challenging New
London’s legal authority to take their homes. The trial court
issued an injunction preventing New London from taking certain
of the properties but allowing others to be taken. The appellate
court found for New London on all the claims, and the
landowners (petitioners) appealed.
Judicial Opinion
STEVENS, Justice Two polar propositions are perfectly clear.
On the one hand, it has long been accepted that the sovereign
may not take the property of A for the sole purpose of
transferring it to another private party B, even though A is paid
just compensation. On the other hand, it is equally clear that a
State may transfer property from one private party to another if
future “use by the public” is the purpose of the taking; the
condemnation of land for a railroad with common-carrier duties
is a familiar example. Neither of these propositions, however,
determines the disposition of this case.
The disposition of this case therefore turns on the question
whether the City’s development plan serves a “public purpose.”
Without exception, our cases have defined that concept broadly,
reflecting our long-standing policy of deference to legislative
judgments in this field.
In Berman v Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27
(1954), this Court upheld a redevelopment plan targeting a
blighted area of Washington, D.C., in which most of the housing
for the area’s 5,000 inhabitants was beyond repair. Under the
plan, the area would be condemned and part of it utilized for the
construction of streets, schools, and other public facilities. The
remain- der of the land would be leased or sold to private par-
ties for the purpose of redevelopment, including the
construction of low-cost housing.

The owner of a department store located in the area challenged
the condemnation, pointing out that his store was not itself
blighted and arguing that the creation of a “better balanced,
more attractive community” was not a valid public use. Writing
for a unanimous Court, Justice Douglas refused to evaluate this
claim in isolation, deferring instead to the legislative and
agency judgment that the area “must be planned as a whole” for
the plan to be successful. The Court explained that “community
redevelopment programs need not, by force of the Constitution,
be on a piecemeal basis—lot by lot, building by building.” “We
do not sit to determine whether a particular housing project is
or is not desirable. The concept of the public welfare is broad
and inclusive. . . . The values it represents are spiritual as well
as physical, aesthetic as well as monetary. It is within the power
of the legislature to determine that the community should be
beautiful as well as healthy, spacious as well as clean, well-
balanced as well as carefully patrolled. In the present case, the
Congress and its authorized agencies have made determinations
that take into account a wide variety of values. It is not for us to
reappraise them. If those who govern the District of Columbia
decide that the Nation’s Capital should be beautiful as well as
sanitary, there is nothing in the Fifth Amendment that stands in
the way.”
In Hawaii Housing Authority v Midkiff, 467 U.S. 229, 104 S.
Ct. 2321, 81 L.Ed.2d 186 (1984), the Court considered a Hawaii
statute whereby fee title was taken from lessors and transferred
to lessees (for just compensation) in order to reduce the
concentration of land ownership. We unanimously upheld the
statute and rejected the Ninth Circuit’s view that it was “a
naked attempt on the part of the state of Hawaii to take the
property of A and transfer it to B solely for B’s private use and
benefit.” Reaffirming Berman’s deferential approach to
legislative judgments in this field, we concluded that the State’s
purpose of eliminating the “social and economic evils of a land
oligopoly” qualified as a valid public use.
Those who govern the City were not confronted with the need to

remove blight in the Fort Trumbull area, but their determination
that the area was sufficiently distressed to justify a program of
economic rejuvenation is entitled to our deference. The City has
carefully formulated an economic development plan that it
believes will provide appreciable benefits to the community,
including—but by no means limited to—new jobs and increased
tax revenue. To effectuate this plan, the City has invoked a state
statute that specifically authorizes the use of eminent domain to
promote economic development. Given the comprehensive
character of the plan, the thorough deliberation that preceded its
adoption, and the limited scope of our review, it is appropriate
for us, as it was in Ber- man, to resolve the challenges of the
individual owners, not on a piecemeal basis, but rather in light
of the entire plan. Because that plan unquestionably serves a
public purpose, the takings challenged here satisfy the public
use requirement of the Fifth Amendment.
Petitioners contend that using eminent domain for economic
development impermissibly blurs the boundary between public
and private takings. Again, our cases foreclose this objection.
We cannot say that public ownership is the sole method of
promoting the public purposes of community redevelopment
projects. It is further argued that without a bright-line rule
nothing would stop a city from transferring citizen A’s property
to citizen B for the sole reason that citizen B will put the
property to a more productive use and thus pay more taxes.
Such a one-to-one transfer of property, executed outside the
confines of an integrated development plan, is not presented in
this case. While such an unusual exercise of government power
would certainly raise a suspicion that a private purpose was
afoot, the hypothetical cases posited by petitioners can be
confronted if and when they arise. They do not warrant the
crafting of an artificial restriction on the concept of public use.
Just as we decline to second-guess the City’s considered
judgments about the efficacy of its development plan, we also
decline to second-guess the City’s determinations as to what
lands it needs to acquire in order to effectuate the project. “It is

not for the courts to over-see the choice of the boundary line
nor to sit in review on the size of a particular project area. Once
the question of the public purpose has been decided, the amount
and character of land to be taken for the project and the need for
a particular tract to complete the integrated plan rests in the
discretion of the legislative branch.”
The judgment of the Supreme Court of Connecticut is affirmed.
Dissenting Opinion
O’CONNOR, Justice, joined by Justices SCALIA, THOMAS,
and REHNQUIST Under the banner of economic development,
all private property is now vulnerable to being taken and
transferred to another private owner, so long as it might be
upgraded—i.e., given to an owner who will use it in a way that
the legislature deems more beneficial to the public—in the
process. To reason, as the Court does, that the incidental public
benefits resulting from the subsequent ordinary use of private
property render economic development takings “for public use”
is to wash out any distinction between private and public use of
property—and thereby effectively to delete the words “for
public use” from the Takings Clause of the Fifth Amendment.
Accordingly I respectfully dissent.
Where is the line between “public” and “private” property use?
We give considerable deference to legislatures’ determinations
about what governmental activities will advantage the public.
But were the political branches the sole arbiters of the public-
private distinction, the Public Use Clause would amount to little
more than hortatory fluff. An external, judicial check on how
the public use requirement is interpret- ed, however limited, is
necessary if this constraint on government power is to retain
any meaning.
Even if there were a practical way to isolate the motives behind
a given taking, the gesture toward a purpose test is theoretically
flawed. If it is true that incidental public benefits from new
private use are enough to ensure the “public purpose” in a
taking, why should it matter, as far as the Fifth Amendment is
concerned, what inspired the taking in the first place? And

whatever the reason for a given condemnation, the effect is the
same from the constitutional perspective— private property is
forcibly relinquished to new private ownership.
CASE BRIEF 5.6
Kelo v. City of New London
545 U.S. 469 (2005)
FACTS:
In 1978, the city of New London, Connecticut undertook a
redevelopment plan for purposes of creating a redeveloped area
in and around the existing park at Fort Trumball. The plan had
the goals of achieving all the related ambience a state park
should have, including the absence of pink cottages and other
architecturally eclectic homes. Part of the redevelopment plain
was the city’s deal with Pfizer Corporation for the location of
its research facility in the area. The preface to the city’s
development plan included the following statement of goals and
purpose:
“to create a development that would complement the facility
that Pfizer was planning to build, create jobs, increase tax and
other revenues, encourage public access to and use of the city's
waterfront, and eventually "build momentum" for the
revitalization of the rest of the city, including its downtown
area.”
.
The redevelopment plan included detailed and extensive
documentation on its socioeconomic impact. The affected
property owners, including Susette Kelo, live in homes and
cottages (15 total) located in and around other existing
structures that will be permitted to stay in the area for the
proposed new structures that will consist of primarily private
land developers and corporations. In fact, the city was assisted
by a private, nonprofit corporation, the New London
Development Corporation (NLDC), in the development of the

economics plan and the ferrying of it through the various
governmental processes, including that of city council approval.
Such
approval seems a mere formality given the fact that the city
council created the NLDC. The central focus of the plan was
attracting Pfizer to the Fort Trumbull area (where the
homeowners and their properties were located) with the hope of
the economic boost and benefits a major corporate employer can
bring to an area.
Kelo and the other landowners whose homes would be razed to
make room for Pfizer and the accompanying and resulting
economic development plan filed suit challenging New
London’s legal authority to take their homes.
DECISION BELOW:
The trial court issued an injunction preventing New London
from taking certain of the
properties but allowing others to be taken. Following an
injunction, the property owners who were denied relief appealed
and the city cross-appealed. The appellate court found for New
London on all the claims, and the landowners (petitioners)
appealed.
ISSUES ON APPEAL:
1. Can a city delegate its economic development role and its
eminent domain duties
and powers to a redevelopment corporation?
2. Can a city pick and choose which properties will be
retained by owners and
which will be condemned and taken?
3. Is economic development a constitutionally permissible use
of the eminent
domain power?
DECISION:

In a 5-4 decision delivered by Justice Stevens, joined by
Justices Kennedy, Souter, Ginsberg and Breyer, the U.S.
Supreme Court upheld the decision of the Connecticut Supreme
Court.
New London’s taking of the homes of Kelo and others qualifies
as a "public use" within the meaning of the Takings Clause.
Local governments cannot take private land simply to confer a
private benefit on a particular private party, but when the
takings will be executed pursuant to a carefully considered
development plan and the plan was not adopted "to benefit a
particular class of identifiable individuals," the takings are
constitutional. Government projects often benefit individuals,
with some individuals benefiting more than others. Such
imbalance does not violate the constitution. The court concludes
that public purpose is a broad category for purposes of
determining when takings are constitutional. Local
governments’ determinations that areas at issue are sufficiently
distressed to justify a program of economic rejuvenation are
entitled to deference of the courts and the courts should not
second-guess local authorities.
Case 5.1
National Federation of Independent Business v Sebelius 132
S.Ct. 2566 (2012)
Mandating Health Insurance under the Commerce Clause
Facts
Congress passed the Patient Protection and Affordable Care Act
(also known as Obama Care) in order to increase the number of
Americans covered by health insurance and decrease the cost of

health care. One key provision in the law is the individual
mandate, which requires most Americans to maintain “minimum
essential” health insurance coverage. Attorneys general from
several states, along with businesses, challenged this
requirement (and other provisions of the law) as being
unconstitutional under the Commerce Clause. From a series of
federal court decisions below, some finding the law
constitutional and others not, the affected parties appealed and
the Supreme Court granted certiorari. Their cases were
consolidated for the court’s review.
Judicial Opinion
ROBERTS, Chief Justice
The Constitution grants Congress the power to “regulate
Commerce.” (Art. I, § 8, cl. 3.) The power to regulate commerce
presupposes the existence of commercial activity to be
regulated. If the power to “regulate” something included the
power to create it, many of the provisions in the Constitution
would be superfluous. For example, the Constitution gives
Congress the power to “coin Money,” in addition to the power
to “regulate the Value thereof.” And it gives Congress the
power to “raise and support Armies” and to “provide and
maintain a Navy,” in addition to the power to “make Rules for
the Government and Regulation of the land and naval Forces.”
If the power to regulate the armed forces or the value of money
included the power to bring the subject of the regulation into
existence, the specific grant of such powers would have been
unnecessary. The language of the Constitution reflects the
natural understanding that the power to regulate assumes there
is already something to be regulated.
Our precedent also reflects this understanding. As expansive as
our cases construing the scope of the commerce power have
been, they all have one thing in common: They uniformly
describe the power as reaching “activity.” It is nearly
impossible to avoid the word when quoting them.
The individual mandate, however, does not regulate existing
commercial activity. It instead compels individuals to become

active in commerce by purchasing a product, on the ground that
their failure to do so affects interstate commerce. Construing
the Commerce Clause to permit Congress to regulate individuals
precisely because they are doing nothing would open a new and
potentially vast domain to congressional authority. Every day
individuals do not do an infinite number of things. In some
cases they decide not to do something; in others they simply fail
to do it. Allowing Congress to justify federal regulation by
pointing to the effect of inaction on commerce would bring
countless decisions an individual could potentially make within
the scope of federal regulation, and—under the Government’s
theory—empower Congress to make those decisions for him.
Indeed, the Government’s logic would justify a mandatory
purchase to solve almost any problem. To consider a different
example in the health care market, many Americans do not eat a
balanced diet. That group makes up a larger percentage of the
total population than those without health insurance. The failure
of that group to eat a healthy diet increases health care costs
more than the failure of the uninsured to purchase insurance.
Those increased costs are borne in part by failure of that group
to have a healthy diet increases health care costs, to a greater
extent than other Americans who must pay more, just as the
uninsured shift costs to the insured. Congress addressed the
insurance problem by ordering everyone to buy insurance.
Under the Government’s theory, Congress could address the diet
problem by ordering everyone to buy vegetables.
People, for reasons of their own, often fail to do things that
would be good for them or good for society. Those failures—
joined with the similar failures of others— can readily have a
substantial effect on interstate commerce. Under the
Government’s logic, that authorizes Congress to use its
commerce power to compel citizens to act as the Government
would have them act.
That is not the country the Framers of our Constitution
envisioned. James Madison explained that the Commerce Clause
was “an addition which few oppose and from which no

apprehensions are entertained.”
The Federalist No. 45, at 293. While Congress’s authority under
the Commerce Clause has of course expanded with the growth
of the national economy, our cases have “always recognized that
the power to regulate commerce, though broad indeed, has
limits.” The Government’s theory would erode those limits, per-
mitting Congress to reach beyond the natural extent of its
authority, “everywhere extending the sphere of its activity and
drawing all power into its impetuous vortex.” The Federalist
No. 48, at 309 (J. Madison). Congress already enjoys vast power
to regulate much of what we do. Accepting the Government’s
theory would give Congress the same license to regulate what
we do not do, fundamentally changing the relation between the
citizen and the Federal Government.
[There were other issues covered in the 106-page opinion. The
complicated decision resulted in the lower court decisions being
both affirmed and reversed, but the individual mandate was
declared unconstitutional under the Commerce Clause but
constitutional as a tax.]
CASE BRIEF 5.1
National Federation of Independent Business v. Sebelius
132 S.Ct. 2566 (2012)
FACTS:
Congress passed the Patient Protection and Affordable Care
Act (also known as Obama Care) in order to increase the
number of Americans covered by health insurance and decrease
the cost of health care. One key provision in the law was the
individual mandate, which requires most Americans to maintain
“minimum essential” health insurance coverage. Attorneys
general from several states, along with businesses, challenged
this requirement and other provisions of the law as being
unconstitutional under the Commerce Clause.
DECISION BELOW:
From a series of federal court decisions below, some finding

the law constitutional and
others not, the affected parties appealed, and the Supreme Court
granted certiorari. Their cases were consolidated for the court's
review.
ISSUE ON APPEAL:
Does the Commerce Clause grant Congress the authority to
mandate citizens to purchase certain goods and services if their
failure to do so affects commerce?
DECISION:
The court found that the individual mandate violated the
Commerce Clause and was not
constitutional. The court faced a new commerce clause issue of
whether the federal government could require citizens to
purchase a good or service because the lack of health insurance
affected commerce. In the 5-4 decision, the court concluded,
"The individual mandate, however, does not regulate existing
commercial activity. It instead compels individuals to become
active in commerce by purchasing a product, on the grounds
that their failure to do so affects interstate commerce.
Construing the Commerce Clause to permit Congress to regulate
individuals precisely because they are doing nothing would
open a new and potentially vast domain to
congressional authority. Every day individuals do not do an
infinite number of things. In some cases, they decide not to do
something; in others they simply fail to do it. Allowing
Congress to justify federal regulation by pointing to the effect
of inaction on commerce would bring countless decisions an
individual could potentially make within the scope of federal
regulation, and – under the Government's theory – empower
Congress to make those decisions for him."
© 2017 Cengage Learning®. May not be scanned, copied or
duplicated, or posted to a publicly accessible website, in whole
or in part, except for use as

permitted in a license distributed with a certain product or
service or otherwise on a password-protected website or school-
approved learning management
system for classroom use.
Submit one MSWord document with clear labeling and
distinctions for each response. To obtain full points you must
apply the concepts we’ve studied to date and use the tools and
skills studied in your response. Always cite any paraphrasing
and quotes from your textbook, lecture, or other sources.
· Answer: Chapter 5 - Case 5.1 Questions 1-3.
· 1. What was missing that the Court indicated was needed in
order to find that the mandate was constitutional?
· 2. What was the purpose of the court’s discussion of a healthy
diet?
· 3. What sources does the court rely on for constitutional
interpretation?
· Discuss: Ethical issues p. 159.
Orenthal James (O.J.) Simpson was charged with murder in June
1994 in the double homicide of his ex-wife, Nicole Brown
Simpson, and her friend Ronald Goldman.
Because Mr. Simpson was charged with a capital crime, he was
incarcerated upon being charged. California’s version of the
Son of Sam law prevents profits from crimes only after there
has been a conviction. Mr. Simpson authored a book, I Want to
Tell You, while he was incarcerated and his nine-month trial in
progress. Mr. Simpson also signed autographs and sports

memorabilia and sold them from the Los Angeles County jail.
Mr. Simpson’s cottage industry from jail netted him in excess of
$3 million. Could a law that passes constiutional muster be
implemented to prevent crime-related profits like those Mr.
Simpson was able to obtain?
Mr. Simpson was acquitted of the murders. Following his
acquittal, prosecutors in the case, Christopher Darden, Marcia
Clark, and Hank Goldberg, signed multi-million-dollar book
contracts to write about their experiences during the trial. Alan
Dershowitz, the late Johnnie Cochran, and Robert Shapiro,
members of the Simpson defense team, signed six-figure
contracts to write books about the trial from the defense
perspective. Daniel Petrocelli, the lawyer who represented the
Goldmans in their civil suit against Mr. Simpson, also wrote a
book, Triumph of Justice: The Final Judgment on the Simpson
Saga.
In 2007, a book by Mr. Simpson, If I Did It, was released by the
Goldman family. The Goldmans had acquired the rights to the
Simpson book because of their $33 million judgment against
Mr. Simpson following the civil case for wrongful death. They
were assigned the rights to the book’s royalties as a means of
collecting the judgment. Upon its release, the book soared to
number 1 on Amazon.com even as Mr. Simpson was arrested in
Las Vegas for his alleged role in a robbery of sports
paraphernalia.
Is it moral to profit from a crime and a trial? Are these book
contracts a form of making money from the deaths of two
people? Many publishers refused to pub- lish If I Did It, and
networks refused to air interviews with Mr. Simpson about the
book. Would you have declined the book for publication or to
air an interview that would have brought in ad revenues?
· Answer: Chapter 5- Case 5.6 Questions 1-3.
· 1. What is different between this case and a case in which
property is taken for constructing a freeway?
· 2. What is the concern of the dissent about the decision?
· 3. Why does the majority state that the courts should be

reluctant to get involved in local government eminent domain
activities?
· Answer: Chapter 6 - Questions 5, 7.
5. Rhonda Kallman founded a company that produces
Moonshot 69, a caffeinated beer. Each bottle of beer contains
about twice as much caffeine as a can of Pepsi. In 2011, Ms.
Kallman, along with three other manufacturers, was served with
a cease-and-desist notice from the FDA to remove the caffeine
from her beer or stop selling the product. Ms. Kallman has said
that what the FDA is doing is like Prohibition 2010 and that it
has no authority to regulate the sale or production of alcohol.
She also indicates that Moonshot 69 is not an energy drink like
those that are subject to FDA regulation. She says that agencies
should regulate and not ban products. What information could
you share with Ms. Kallman that would help determine what the
FDA is trying to accomplish?
7. Hooked on Phonics is a reading program that departs from the
current educational reading philosophy of “whole-language
learning.” The program emphasizes the more traditional reading
process of having children sound out letters and combinations
of letters. The Federal Trade Commission (FTC) filed a false
advertising complaint against Gateway Educational Products,
Inc., the owner of the Hooked on Phonics program. The FTC
claimed that Gateway’s television claims that those with
reading disabilities would be helped “quickly and easily” and
that Hooked on Phonics could “teach reading in a home setting
without additional assistance” were misleading. Gateway does
not feel the claims are false, but it does not want to have bad
publicity. What advice can you give Gateway on handling the
FTC charges?

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