Adam—On Episode 1827, you discussed the Christmas-tree farmers in Maryland who are fighting a power company that is threatening to invoke eminent domain to cut through their land. I would have messaged you live, but I was in the middle of some delicate woodworking.
The fact is, according to a very unpopular 5-4 SCOTUS decision called Kelo v. New London (2005), private entities can indeed “borrow” governmental eminent-domain powers as they use the land for “public use.” Kelo has been called a “reverse Robin Hood” decision.
I suppose that many public utilities are already quasi-governmental and enjoy the associated powers. But even purely private companies can avail themselves of eminent domain if they seek to promote a public use. So even if the power company in Maryland is totally private, it can easily call power transmission a “public use” and cut a swath through private property—as long as it reasonably compensates the aggrieved landowners as the Fifth Amendment requires.
Sounds pretty messed up, right? Well lo and behold, I received the attached article this morning (highlighted as usual). It provides a fascinating look at how the government’s lawyer in Kelo manipulated the four liberal SCOTUS Justices, plus notorious swing voter Justice Kennedy, into reading eminent domain so broadly that it benefits private developers.
It also points out that the backlash to this decision was so fierce that 47 states immediately passed property-protection laws to reduce Kelo’s impact. Maryland is one of the 47, but I guess its laws don’t protect the Christmas-tree farmers from public-utility development. AI über Alles.
Some highlights from the article:
SCOTUS’s 5-4 Kelo decision allowed Connecticut to seize private homes for economic development. In response, every state except New York, Massachusetts, and Arkansas enacted landowner-friendly reforms, with 11 states amending their state constitutions.
Despite these state-level reforms, Kelo remains intact—governments can still take property for economic-development purposes. The state laws just make it harder.
The current SCOTUS composition might produce a different result today: The conservatives are “originalists” who reject attempts to morph the Constitution, while the liberals show concern for “marginalized communities.”
Still, SCOTUS has recently declined multiple opportunities to revisit Kelo. These include a 2021 case involving a chocolate factory in Chicago (seriously??); a 2024 case involving a public park on Long Island; and a 2025 case involving a Colorado farm. Sooner or later, I think one of these case will get traction—a cert-worthy case has to check a lot of boxes.
Some skullduggery: The lawyer who argued Kelo for the city of New London focused on facts rather than legal theory. He hoped to lure the four liberal Justices at the time—Stevens, Ginsburg, Souter, and Breyer—along with Justice Kennedy. He avoided constitutional questions, and instead framed the issue around whether developers would lose their 99-year lease for noncompliance. Meanwhile, because the City of New London had not yet selected a developer, the landowners could not allege cronyism or bias. He got his five votes. The dissenters were Rehnquist, Scalia, Thomas, and O’Connor.
Ironically, the actual New London development project in Kelo failed, leaving Susette Kelo’s former property as a weed-infested vacant lot. See the article for before-and-after photos.