graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Mayor In Guam Uses Pretextual Taking To Steal Property

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 family’s 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 mayor’s family’s 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.

Issue Areas:

Limited Government, Property Rights

Read the Amicus Brief:
Question(s) Presented:

1. Does the Public Use Clause of the Fifth Amendment permit condemnations where the official stated purpose is a pretext for the true purpose of benefiting a private party?

2. Does the Public Use Cause of the Fifth Amendment permit the use of eminent domain to take property for transfer to a known private  entity that will get the vast majority of the benefit from the taking?

3. Should this Court overrule Kelo v. City of New London‘s ruling that transferring property from one private owner to another for purposes of “economic development” is a public use justifying the use of eminent domain under the Fifth Amendment?

ALF’s Amicus Brief:

Kelo v. City of New London is one of the most infamous cases of all time, as it allows the government to seize private property from individuals to give to large private firms, stealing from the poor and enriching the rich, in the name of “economic development.” In order to clarify the basis upon which the private property rights of American citizens stands on, ALF asks the Supreme Court to clarify what constitutes a pretextual taking, if the Court will not overrule Kelo outright, and not allow private parties that can afford to influence a local government to use eminent domain to take property for their own private benefit.


On Apr 15, 2013 the Supreme Court denied certiorari.

Date Originally Posted: January 7, 2013

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