Thursday, June 13, 2024
Hawai'i Free Press

Current Articles | Archives

Thursday, March 23, 2017
Do Muslims Have a Property Interest in US Visas?
By Robert Thomas @ 2:26 AM :: 5383 Views :: National News

The Eminent Domain Angle In The Hawaii Federal Court's Immigration EO Ruling

by Robert Thomas, Inverse Condemnation, March 20, 2017

We think we can find a takings angle in nearly anything. See here (net neutrality) here (the Supreme Court's Obamacare decision), and here (a visit to Los Alamos, NM) for past examples.

So when reviewing last week's U.S. District Court (D. Hawaii) order granting a nationwide TRO prohibiting enforcement of President Trump's executive order on immigration (something, we admit, has nothing to do with our usual topics -- we were armoring up for the inevitable cocktail party questions), we came across the court's reliance on several cases which allowed it to "go behind" the purported purpose of the EO, to get to the "real" reason it was adopted: religious animus. See Order at 32 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977)).

We knew we had our angle. Because you know what looking for the "real" motive behind a government action seems an awful lot alike to us? Our old friend, pretext in eminent domain.

Mission accomplished.

Relying on those two Supreme Court decisions to get behind government's facially-neutral reasons behind a taking isn't something we conjured up recently, and we last raised it in 2011, when we filed this cert petition which argued:

This Court has recognized in similar situations that a reviewing court must look to context to determine the motivations of government officials. See, e.g., Vill. of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (“Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.”); Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993) (“[W]e may determine the city council’s object from both direct and circumstantial evidence,” which includes “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.”). Although these cases involved equal protection and the free exercise of religion, the inquiry is no different when property is involved, since private property is also a fundamental constitutional right that must be respected. Dolan v. City of Tigard, 512 U.S. 374, 393 (1992) (“We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or the Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances.”).

Petition at 29-30.

If those cases can be employed to go behind the text of an executive order -- especially an EO on immigration, the area in which judicial deference to the executive traditionally is at its zenith -- then we don't see any good reason why it should not similarly be available to ask a mayor or council person about their extrajudicial (and even pre-office) statements about why property should be condemned, whatever the text of the actual resolution says.

Why not? 

PDF: Petition for a Writ of Certiorari, C & J Coupe Family Ltd. P'ship v. County of Hawaii, No. 11-75 (July 18,...


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


Aloha Pregnancy Care Center


Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii


Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii Military History

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Together


Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

July 4 in Hawaii

Land and Power in Hawaii

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

National Parents Org Hawaii

NFIB Hawaii News

NRA-ILA Hawaii


OHA Lies

Opt Out Today

Patients Rights Council Hawaii

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii

Rental by Owner Awareness Assn

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

School Choice in Hawaii

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii