When the government takes your property, the Constitution entitles you to “just compensation.” But should the value of your property be computed based on market value, which would normally incorporate predictions about future government action? Or should the value of your property be determined without any reference to what the government might do — including take your property?
As you can imagine, this question is pretty important to anyone who invests in assets that fluctuate in value based on potential government regulation. And it’s the question posed in a case, Love Terminal Partners LP and Virginia Aerospace LLC v. U.S., that the U.S. Supreme Court will soon decide whether to hear.
What is it about Love Field? In contrast to its pleasant name, this wee patch of Texas seems to attract trouble. There on November 22nd, 1963 Air Force One landed after a short flight from Fort Worth and from Love Field, President Kennedy drove to past the schoolbook depository. A few hours later at Love Field, Lyndon Johnson was sworn in as president. The Dallas Fort Worth airport did not yet exist. The building of DFW airport pulled Love Field into national policy controversies that led to this case. The case seems to some people, but not to others to implicate the Constitution's taking clause, which says that private property shall not be taken for public use without just compensation. The history of the public use stipulation has been rich in recent controversies arising from government uses of the power of eminent domain.
The Constitution's authors did not scatter adjectives carelessly. Until relatively recently, this straight forward understanding of the phrase public use, was that it meant use for things, roads, bridges, courthouses and so on used by the general public. However, this circumscription of the eminent domain power has been drastically weakened. A 1954 case involved what was then called urban renewal in the southwest quadrant of the District of Columbia, where conditions were appalling and dangerous. Most dwellings had no baths, indoor toilets, or central heating. The Tuberculosis rate was high. The court held that taking property for public use can mean for the public purpose of combating blight that harms the larger community.