Well, maybe not, but in a 5-4 decision today, the Supreme Court ruled that local governments can invoke eminent domain and seize land for "economic development," even if the land is not in an economically undeveloped area, and even if all the state intends to do is take your seized land and turn around and sell it to a private developer for a shopping mall.

The government could always do this to build things like roads or schools, and even sometimes to turn besotted areas into less disastrous ones, but this is a new thing. Remember those classic stories of the little old lady who didn't want to sell her house to the company building the shopping mall, so they built around her, or they paid her $20 million, or whatever? No more - now, if the company can't get the land at the price they want, all they have to do is get the local government to take it from her at "fair market value" and resell it to the developer at the same price.

If a really connected company like Halliburton wants your land, then according to today's decision, there's nothing you can do to stop them from getting their paid legislators to take it from you. This is a bad decision, and a disappointing one, and it's also the first time I can remember that all nine justices wound up voting for the side I thought they wouldn't. Stevens, Kennedy, Souter, Ginsburg, and Breyer voted in the majority; Rehnquist, O'Connor, Scalia, and Thomas dissented.

According to SCOTUSBlog, though, this may not be quite the unlimited power grab that, quite honestly, it really appears to be:

Justice Anthony M. Kennedy, in a separate opinion in the property rights case (Kelo v. New London, 04-108), appears to have put city governments on notice that they can go too far in using the added power that the Court seems to have given them to seize land for economic development.

The majority opinion by Justice John Paul Stevens sought to put off to the future any correction in the breadth of the new decision. Stevens dismissed "hypothetical cases" raised by property-owners, saying those "can be confronted if and when they arise." Those concerns, Stevens added, "do not warrant the crafting of an artificial restriction on the concept of public use."

Kennedy was not so reticent. Although he joined the Stevens opinion in full, it is clear from his concurring opinion that he sensed that the prospect of abuse was more evident than Stevens had acknowledged. Since his vote was necessary for the city of New London to prevail, his separate opinion in some sense may be said to be controlling.

According to Kennedy, if an economic development project favors a private developer, "with only incidental or pretextual public benefits," that would not be tolerated even by applying the minimum standard of "rational basis review."

[…] Kennedy was employing a technique raised to the level of a science by the late Justice Lewis F. Powell Jr. -- join a majority opinion, but then add a concurrence that softened the edges somewhat. It is a technique that Justice Sandra Day O'Connor is also good at deploying now and then.

No doubt, land-use lawyers trying to protect existing property users will now spend considerable time and energy developing arguments to exploit the opening that Kennedy's opinion appears to have created. At the same time, lawyers for city governments bent on calling in private developers no doubt will be giving their clients stern advice on how to proceed in order to avoid running afoul of Kennedy's presumption of "an impermissible private purpose."

(Via SCOTUSblog.)

Update: Neither Nathan Newman nor Scott Lemieux (writing at Ezra Klein's place) think this was the wrong decision.