Supreme Court Asked to Clarify the Law of Eminent Domain Abuse and ‘Pretextual Takings’


On January 7, a broad coalition of public interest legal foundations, including the Atlantic Legal Foundation, public policy groups, and professors of constitutional law filed an amicus brief asking the Supreme Court to take up a case, Ilagan v. Ungacta, involving eminent domain abuse. The case concerns the use of eminent domain by the government of Guam, a U.S. territory, to take the Ilagan familys private property, ostensibly for the purpose of economic development. The taking in fact benefitted the politically powerful former mayor of Agana, the capital of Guam, and his family. The Ilagan family claims that economic development was just a pretext for the mayors familys private benefit.

The issue of eminent domain abuse is very important because eminent domain is increasingly used by state and local governments and quasi-governmental public benefit development corporations to take private property which is then quickly flipped to a private developer. Often the persons whose property is taken are poor individuals or small businesses that are not politically connected, while the actual beneficiaries are often large, politically powerful real estate interests.

One of the many problems with eminent domain takings is that they are really pretextual, that is, the stated purpose is for a vague public benefit, while the real benefits of the project accrue to private developers. In the now infamous Kelo case ( Kelo v. City of New London, 545 U.S. 469 (2005)), the Supreme Court emphasized that government may not take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. Unfortunately, the Kelo majority did not define the term mere pretext and provided only limited guidance on what counts as a pretextual taking. As we emphasize and illustrate in our amicus brief, lower courts have applied widely divergent standards.

We therefore ask the Supreme Court to clarify the law or, even, overrule Kelo.

To see our brief, click here.