Judge Simon E. Sobeloff, 1894-1973

Berman v. Parker
348 U.S. 26 (1954)

Introduction by Professor Garrett Power,
University of Maryland School of Law

Government is not the solution, it is the problem." So proclaimed President Ronald Reagan in his 1981 Inaugural Address and such has been the rallying cry of the Republican Party ever since. But it was not always so. Thirty years before the Eisenhower Administration had sponsored governmental programs of urban renewal and slum clearance. Solicitor General Simon E. Sobeloff, a Republican loyalist to the bone, was the advocate of the constitutionality of the Administration's cause in the landmark Supreme Court case of Berman v. Parker.

The District of Columbia's urban renewal program had made use the power of eminent domain to condemn the properties in a blighted area in order to transfer all of the land to a private redeveloper. But the Fifth Amendment to the U.S. Constitution only permits governments to take private property for a "public use." And Berman who owned a well-maintained department store located within the blighted area complained that its condemnation amounted to "a taking from one businessman for the benefit of another businessman" and did not constitute a public use.

Sobeloff answered that "private enterprise alone" could not "eliminate the substandard housing conditions …and blighted areas" in the District of Columbia." He defended the Government's "use of eminent domain to effectuate the policy by the discontinuance of the use for human habitation…of substandard housing." And he convinced a unanimous Supreme Court that the constitutionally required "public use" was thereby accomplished. "Progressive" Republicans joined liberal Democrats in applauding the decision in Berman v. Parker as a signal of a long overdue willingness on the part of government to guarantee "a decent home for every American Family."

But yesterday's reforms day are often today's problems. Critics across the political spectrum are calling into question the success of urban renewal programs and the legitimacy of expansive uses of the power or eminent domain. The "Right" castigate exercises of eminent domain as attacks on the sanctity of property. Centrist follow the lead of Jane Jacobs in lamenting the destruction of vibrant downtown neighborhoods while charging that clearance programs have reduced the stock of affordable housing while those on the "Left" view urban renewal as a tool for removing minorities and racial segregation. Today's reformers call for the elimination of government sponsored redevelopment programs, and for imposition of draconian restrictions on exercises of the power of eminent domain.

Simon E. Sobeloff was a Republican stalwart, a social progressive, a city dweller, and a defender of the rights of African Americans. One can only ponder what his position would be today, if he were asked to argue the case of Berman v. Parker.

About Berman

Procedural History

District Court dismissed appellants' complaint which sought to enjoin the condemnation of their property under the District of Columbia Redevelopment Act of 1945. The District Court sustained the Act's constitutionality.

Facts

Congress passed the District of Columbia Redevelopment Act of 1945. According to the Act, Congress could determine that substandard housing and blighted areas in D.C. were injurious to the public health, safety, etc., and that Congress could eliminate such injurious conditions through necessary and appropriate means - such as acquisition of property. Congress found that acquiring and leasing and/or selling the property for redevelopment pursuant to a detailed plan was a "public use." The Act created an Agency and Commission to develop plans for the proposed property. Once acquired, the property could be transferred to public or private entities for redevelopment, as long as the redevelopment conformed with the intended plan.

The first project undertaken by the Act was "Project Area B" in D.C., a blighted area that Congress found necessary to redevelop in the interest of public health. Appellants own commercial property in Area B, and claim that their property may not be constitutionally taken under the Act because it is not slum housing and will be transferred to a private, not public, agency, which isn't public use. Specifically, appellants argue that their property is taken contrary to the Fifth Amendment's Due Process and Public Use clauses.

Issue

May Congress take non-dilapidated privately-owned property in a blighted area to develop a better, more attractive community?

Holding and Rule

Yes, as long as Congress establishes its actions are for a public purpose (thus, Congress is acting within its police powers), it is given great discretion in determining how to achieve its goals. This includes the use of eminent domain to take and transfer land to private - not public - redevelopment agencies and to take land as a whole rather than on a property-by-property basis. Affirmed. (continues below)

Page one of the Berman brief.

Reasoning

The legislature may enact legislation that addresses the public interest - such as safety, health, and morality - under its "police powers." The judiciary's role in evaluating whether the legislature is acting according to a public purpose is limited, and the legislature is given broad deference in determining what is best for the public welfare. This also includes a legislature's determination that a certain area should be beautiful as well as healthy. Once Congress has authority under its police powers to reach a certain end, it can use eminent domain as a means to that end.

In this case, Congress used - as its means - a private enterprise for redevelopment of the area. Congress determined that transfer to a public ownership was not the sole method of promoting the purposes of the Act, and should be given discretion by the Court. Moreover, contrary to appellants' claims that their building - albeit in a dilapidated area - did not endanger public health or contribute to a blighted area, Congress had discretion to take an area as a whole, rather than on a property-by-property basis. If individual property owners were allowed to resist redevelopment efforts, certain plans created by the Act would never reach completion.

However, the property owners had the right to just compensation exacted by the Fifth Amendment's takings clause.

Read the Government's Brief | Read the Opinion of the Court