Taking the Preakness Horse Race by Eminent Domain?

Here we go again, folks. The city of Baltimore, evidently unchastened by its unsuccessful attempt of a couple of decades ago to take the Colts NFL franchise, is trying to take the Preakness horse race (and the rights thereto) by eminent domain. If that strikes you as absurd, join the club. But absurd as it may sound, there is a precedent of sorts for this attempt to abuse the power of eminent domain. A few years back, the city of Oakland, California, tried to take the NFL franchise of the Oakland Raiders in order to prevent them from moving to Los Angeles. We wrote about it at the time. The California Supreme Court held that doing so met the “public use” constitutional limitation on the power of eminent contained in the Fifth Amendment. But eventually, California courts came to their senses and held that “public use” or not, the taking was impermissible because it would be a violation of, of all things, the Interstate Commerce Clause of the Constitution.

So, after providing lots of employment to a bunch of lawyers (including inter alia  your faithful servant) the Raiders moved to Los Angeles. But it didn’t work out — after a while the Raiders moved back to Oakland thus demonstrating that the market, not the folks in city hall, has the last word when it comes to running a successful NFL team. See Gideon Kanner, Revisiting Baltimore’s Failed Hail Mary, LA Daily Journal, April 2, 2009, at p. 6.

Baltimore also talked a good game about taking the Pimlico/Preakness horse race back in 2009. See Gideon Kanner, Maryland’s Bad Track Record, LA Daily Journal, April 17, 2009, at p, 6. But that effort went nowhere.

Now Baltimore is trying it again. You can get the detailed legal story on the Volokh Conspiracy of March 26th, 2019, wherein Professor Ilya Somin goes into the legalities (or illegalities of the matter, as the case may be) in some detail. We recommend that you read his piece if you have an interest in this fershluggeneh field of law.

What puzzles us is that in all these cases the avowed purpose of the attempted taking was to prevent the Raiders (and Colts) from moving out of town. But no one, to the best of our recollection, based the opposition to these attempted takings on the constitutional right to travel. Though the law is plain that Americans have every right to move across the fruited plain as they wish, no one, to the best of our recollection raised that legal point as a defense to the taking of the Raiders NFL franchise in order to keep them in Oakland, even though the city was candid about its desire to prevent the Raiders from moving to Los Angeles. Which is academic because the Raiders won on another theory. But who knows, maybe that defense will be raised now.

So stay tuned and see how it all turns out.