Kelo v. New London is a case discussed on The Bob Zadek Show as a landmark eminent domain defeat that nonetheless produced widespread legal change. The excerpts treat it chiefly as a reference point for arguments about property rights and economic liberty rather than as a doctrine to be parsed in detail.
The 2010 discussion: a defeat that spurred reform
In the August 8, 2010 episode, host Bob Zadek introduced the case while speaking with Anthony Sanders, a staff attorney at the Institute for Justice. Bob described the firm as the leading public interest law firm in the country and asked Sanders about Kelo, which he characterized as an eminent domain case in Connecticut. Sanders confirmed the firm’s involvement and described the outcome as a defeat in 2005 The Great Founding Fathers (2010).
Sanders said the defeat spurred reform across the country, and that 43 states had adopted legislation to tighten up restrictions on eminent domain. He said the Institute for Justice thinks of the case as a victory and has a track record of turning defeats into victories in the court of public opinion. Bob agreed, saying that before the Kelo decision the issue of eminent domain was not on anybody’s radar screen, and that the firm made it a household phrase and a household concept. He told Sanders the firm accomplished about as much with the defeat as it would have with the success The Great Founding Fathers (2010).
Sanders recounted that other lawyers and interest groups told the firm it was crazy and tilting at windmills, that the firm eventually got a case to the Supreme Court and lost on the narrowest margins, five to four, and that everyone was pretty shocked. He described the outrage as stemming from the idea that the government can take your home and give it to a business because the business is going to make more money in property tax than you do. He said that has led to real change across the country, that some states have changed their laws in a real dramatic way, and that even in states whose changes could have been better, planners at least for now do not touch the issue because they know there would be so much public outrage. He added that the firm does not have that many eminent domain cases right now because whenever it tries to represent someone, the city backs off when it sees the firm’s name on the letterhead The Great Founding Fathers (2010).
The 2018 reference: Kelo as background for regulatory takings
In the July 13, 2018 episode, Bob invoked Kelo while questioning guest Tony Francois about regulatory takings in the context of endangered species habitat designation. Bob said that listeners know from the Kelo case and many other cases that if the government takes your property for use for public use, it has to compensate you and pay the fair value of the property rather than take it for free. He then described regulatory taking as a situation in which the government in effect sucks out all the value of your property by regulation, so that you get to own it but cannot do diddly with it because of the regulations Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018).
Bob said that under those cases the government does not have to compensate you if you have lost value because of a regulatory taking, and offered the image of property that can serve only as a summer home for frogs. He asked Francois whether the situation at issue was a regulatory taking or whether the property owners were entitled to any compensation whatever if they lost in the Supreme Court Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018).
Francois answered that he did not have a direct answer because of how the case had been approached: even in a regulatory taking, the first question in any government taking is whether the government has the authority to carry out the taking. If it does have the authority and there is nothing you can do to stop it, then the question becomes whether you are entitled to compensation. Francois said the argument in the case was that the Fish and Wildlife Service does not have the authority to designate the property as critical habitat, and that if some of the property is unavoidably designated as critical habitat, the extent to which an endangered species designation would result in a right to compensation remains an open question in the courts. He noted that some cases say wildlife protections under the ESA can affect a compensable taking, which he called at least some good news Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018).
Francois framed the immediate question as whether the service even has the authority to do this, or whether the Endangered Species Act is really just a blank check for federal authority to do whatever it wants in designating property. He said the specific question before the Supreme Court was how the definition of critical habitat works in the statute and under what conditions property designated as critical habitat but not actually occupied by the species in question can be designated as such. He said the statute speaks in terms of unoccupied habitat being capable of designation if it is, in the words of the statute, essential for the conservation of the species, and that the federal government had defended its decision to designate what he thought it fair to call non-habitat as critical habitat by rewriting essential to mean handy, maybe one day if there is some completely unforeseen catastrophic event that wipes out a dozen other units of critical habitat that are themselves miles apart from each other in another state. He closed with a quotation from The Princess Bride: You keep using that word. I don’t think it means what you think it means Can California’s Endangered Species Survive U.S. Fish & Wildlife Policy? (2018).
Across episodes
The two episodes are eight years apart and treat Kelo differently: in 2010, Sanders and Bob discuss the case and its aftermath directly, while in 2018 Bob cites it only in passing as background for a regulatory-takings question about endangered species habitat. The excerpts show no development or disagreement between the two treatments; the later episode simply uses Kelo as a shared premise that government taking for public use requires compensation.
What the sources do not cover
The excerpts do not state the holding of Kelo v. New London, the constitutional provision it turned on, or the city and state in which the case arose beyond Bob’s reference to eminent domain in Connecticut. They do not identify the parties, the property at issue, or the name of any reform legislation enacted after the decision. They also do not give the date of the decision beyond Sanders’s reference to 2005, or describe the reasoning of the five-to-four majority.