When antitrust met eminent domain
Last week, a judge in Harrisburg, Pennsylvania, dismissed one of the stranger antitrust cases of recent years. The Commonwealth of Pennsylvania sued one of its own political subdivisions in federal court under federal antitrust law. The underlying dispute involves eminent domain. The subsequent litigation demonstrates the dangers of reacting out-of-context to the Supreme Court's decision in Kelo v. New London.
In March 2005, a privately-owned parking garage near the Harrisburg International Airport was scheduled for seizure by the airport's operating authority, an entity created by seven local governments under state law. The airport invoked eminent domain without articulating a specific use for the garage. According to the garage's owner and Pennsylvania Attorney General Tom Corbett, the airport has no need for the land and simply wanted to eliminate private competition with airport-owned parking facilities.
The garage had already filed a petition in state court challenging the eminent domain action when Attorney General Corbett filed a federal lawsuit against the airport authority. Corbett said the taking of the garage violated the Sherman Act by attempting to monopolize the parking services market in and around the airport. The airport replied that since it was a subdivision of the Commonwealth, it was immune from antitrust suit under the Supreme Court's decision in Parker v. Brown (1943), which exempts most “state action� from the Sherman Act.
U.S. District Judge Christopher Conner dismissed Corbett's complaint. He held that Parker immunity applied, because the airport acted “pursuant to a clearly expressed state policy.� Regardless of the airport's motives, Conner said, the airport's “actions are decidedly governmental.� The Pennsylvania legislature delegated its eminent domain power to the airport authority, and Conner said that it was up to the state's legislature and courts to deal with the consequences rather than federal courts invoking antitrust policies.
From the libertarian perspective, Conner was right to dismiss Corbett's lawsuit. First and foremost, Corbett was not acting to defend the property rights of the garage owner but to defend the “right� of “consumers� to the benefits of competition for airport parking. Had the airport seized a business that it was not in direct competition with, it's not clear whether the Attorney General would have intervened.
Second, Corbett was attempting to use the federal government to usurp the authority of his own state legislature. The simplest solution to the parking garage theft would be to have the legislature restrict or revoke the airport authority's eminent domain powers. But Corbett, like many state attorneys general, views his own authority as greater and more entitled to obedience than that of the legislature. So he asked a federal court to effectively put him in charge of deciding what eminent domain seizures are permissible via federal antitrust law. This is, at best, a lateral move from having a municipal authority decide what land to steal under the guise of airport development.
Third, antitrust is a curious weapon to employ against eminent domain, given that the federal and state governments routinely seize-and-redistribute private property under the Clayton Antitrust Act when reviewing mergers. Firms are often ordered to sell parts of their businesses to government-approved buyers in order to “protect competition.� This is indistinguishable from the “economic development� seizures that were at issue in Kelo; and unlike that case, the Harrisburg Airport is a government-owned entity taking land for its own use.
Finally, as Judge Conner noted, it is impossible to recognize the legitimacy of eminent domain on the one hand while allowing courts to question the state's motives behind individual seizures. Once you've conceded the propriety of eminent domain, you're left to argue over an abstraction, “the public interest.� No judge can come up with an objective system for determining what political acts are in the “public interest� and which are not. Thus, as the Supreme Court did in Kelo, the courts will give the executive and legislative branches a free hand in making those decisions.
Comments (5)
William
It is a good day when a judge stops the application of bad law in constraining the application of worse law. The eminent domain situation is killing freedom in this country and should be destroyed. But it is still a good day when a judge does not use antitrust law that is almost as awful as eminent domain to restrict eminent domain.
It will be a great day for freedom when the Supreme Court goes back to the obvious meaning of the term "public use" and we can end this eminent domain disaster.
Published: March 29, 2006 3:49 PM
Dewaine
When the parasites start running out of hosts, they will have to feed on themselves.
Published: March 30, 2006 12:38 AM
Paul Marks
At the base of all this is the idea (rejected by thinkers from John Locke right to former British Chief Justice Hewitt in "The New Despotism" of 1929, and by the Supreme Court in the sadly misunderstood Schechter Poultry Corp v. U.S. judgement of 1935) that elected politicians can just hand over all their powers to unelected administrators who can then make up any "laws" they like - including stealing private property.
As a libertarian I do not believe that even elected people should have these powers.
But the whole idea of "delegating powers" (what Shechter was really about - it was NOT really about the "commerce clause" as most of the texts have it), undermines any real control voters have over government.
"Kick them out at the next election" - but "them" did not make the regulations, they may even have no idea what regulations are created. After all the administrators make tens of thousands of regulations.
"Government is not possible without extensive delegated legislation".
No, VAST OUT-OF-CONTROL government is not possible without extensive delegation.
Elected politicians in a legislature would simply not have the time to make all the regulations that MEGA government (not ANY government) demands.
If the politicians wish to steal someone's property, let them vote to do so in the State legislature. Let them pass a "law" taking this person's property for the public use with "due compensation".
"No time" to do that? Or scared what the public reaction would be at election time?
Then it should not be done.
The Schechter judgement (stating that the National Recovery Administration had no power to make up vast numbers of "laws", because Congress could not just hand over its law making power to other people - as it had done under the National Industrial Recovery Act) was correct.
Modern American practice (like the practice of all major nations) has rejected Schechter, and in so doing has not only rejected liberty but has also rejected any real democracy as well.
The Executive rules O.K.?
Published: March 30, 2006 9:27 AM
eddyp88
Eminent Domain has far surpassed its original intent. No longer is private property just seized for road construction and public utilities. Local governments have lately been condemning private citizens from their property just for tax purposes and political or economic gain. Legal cases are springing up all over the nation in which local governments are taking property away from one private party and giving it to another private or corporate party. In one recent case , a township in Ohio is trying to remove one of its residents through the use of eminent domain. The city wants to level houses in the area to make way for new condominiums, which will bring in more taxes. One retired couple is putting up a legal fight against the township and the matter will go before the courts.
Lately however, the justice system has been in favor of eminent domain and its use to take property from one citizen, and give it to another. Most home owners would look at these acts as injustices against private property and individual rights protected by the constitution. Is there such a thing as private property in the US or does the government really own everything like in a communist society? Do you own your property or does the government? These are two questions that point straight at the heart of the eminent domain abuse issue.
anti-eminent domain t-shirts
Published: April 13, 2006 11:04 PM
eddyp88
Eminent Domain has far surpassed its original intent. No longer is private property just seized for road construction and public utilities. Local governments have lately been condemning private citizens from their property just for tax purposes and political or economic gain. Legal cases are springing up all over the nation in which local governments are taking property away from one private party and giving it to another private or corporate party. In one recent case , a township in Ohio is trying to remove one of its residents through the use of eminent domain. The city wants to level houses in the area to make way for new condominiums, which will bring in more taxes. One retired couple is putting up a legal fight against the township and the matter will go before the courts.
Lately however, the justice system has been in favor of eminent domain and its use to take property from one citizen, and give it to another. Most home owners would look at these acts as injustices against private property and individual rights protected by the constitution. Is there such a thing as private property in the US or does the government really own everything like in a communist society? Do you own your property or does the government? These are two questions that point straight at the heart of the eminent domain abuse issue.
anti-eminent domain t-shirts
Published: April 13, 2006 11:06 PM