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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,...

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