Ilagan v. Ungacta

Author: Luke Wake Date: January 08, 2013

On behalf of the small business community, the NFIB Legal Center is asking the Supreme Court to take up an important eminent domain case. This case highlights the nationwide importance and salience of eminent domain issues, as demonstrated by the fact that twelve other organizations, and six law professors have joined with NFIB in this coalition effort. In Ilagan v. Ungacta, we are asking the Supreme Court to reconsider the now infamous Kelo v. City of New London, CT decision, which allows government to use the powers of eminent domain to transfer private property from one private landowner to the next. George Mason Law School Professor Ilya Somin--who has written extensively on eminent domain issues--served of counsel of record for our coalition in this filing.    

Petitioners in this case are asking the Supreme Court to resolve important questions left open in Kelo. In that case, the Supreme Court held that government may take private property under the power of eminent domain, and transfer it to another private entity, without violating the Public Use Clause of the Fifth Amendment. Kelo held that such a taking is permissible on the theory that “economic development” constitutes a public use. But, the opinion posits that a taking would be unconstitutional if it was actually initiated solely for the benefit of private parties, with a mere pretext of “public use.”

Since Kelo was decided in 2005, the lower courts have been utterly confused as to what constitutes a pretextual taking. The courts have identified various factors that may be important in this assessment, but they all disagree as to how each factor should be weighed. And some courts—like the Supreme Court of Guam here—have defined pretextual takings so narrowly that there are essentially no limits on the Public Use Clause. In this case, the Supreme Court of Guam upheld that the taking of the Ilagan family’s property, despite the fact that the taking benefited the mayor of the city. Petitioners argue that this taking goes beyond what was allowed in Kelo. And the coalition of amici curiae has encouraged the Supreme Court to take up this case both to resolve the pretext question and to reconsider Kelo.

Status: Pending - Supreme Court of the United States



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