Neo-Brandeis Goes to Washington: A Provisional Assessment of the Biden Administration’s Antitrust Record

Introduction

In early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) Antitrust Division Assistant Attorney General (“AAG”) Jonathan Kanter, and Special Assistant to the President for Technology and Competition Policy in the White House Tim Wu—were self-identified neo-Brandeisians, committed to returning antitrust policy to a contemporary version of Justice Louis Brandeis’s ideas.1.See generally Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018) (describing the history and merits of the “New Brandeis School’s” philosophy and approach to antitrust policy); Zephyr Teachout, “The Long Future of the Neo-Brandeisian Movement, in Three Parts,” Network L. Rev. (July 24, 2024), https://www.networklawreview.org/teachout-future-neobrandeis/ [https://perma.cc‌/KWN3-J62J] (identifying Khan, Kanter, and Wu as key neo-Brandeisian figures).Show More At the urging of Senator Elizabeth Warren, President Biden turned over his Administration’s antitrust policy to the neo-Brandeisians,2.Fred Lucas, Antitrust and Economic Leaders Have Links to Elizabeth Warren, D.C.J. (Dec. 6, 2023), https://www.dcjournal.com/antitrust-and-economic-leaders-have-links-to-eliz‌abeth-warren/ [https://perma.cc/UW5Z-5EAE].Show More who vowed to break antitrust’s reigning consumer welfare standard, retool competition policy to protect other interests such as labor and small business, and significantly expand scrutiny of corporate power, particularly as to Big Tech.3.Exec. Order No. 14,036, 3 C.F.R. 609 (2022).Show More

Four years later, as the neo-Brandeisians retreat from Washington in the wake of a new administration, it is fitting to take stock of what actually happened in those four years. Given the soaring political salience of antitrust during the Biden Administration, there is already a rush to define the narrative regarding the neo-Brandeisians’ time in the nation’s capital.4.See, e.g., Press Release, New Economic Liberties Report Takes a Close Look at Biden and Trump Antitrust Records, Am. Econ. Liberties Project (Oct. 30, 2024), https://www.economic‌liberties.us/press-release/new-economic-liberties-report-takes-a-close-look-at-biden-and-tru‌mp-antitrust-records/ [https://perma.cc/B2JY-7N2K]; Will Norris, Trump vs. Biden: Who Got More Done on Antitrust?, Wash. Monthly (Apr. 7, 2024), https://washingtonmonthly.com/20‌24/04/07/trump-vs-biden-who-got-more-done-on-antitrust/ [https://perma.cc/3W9T-YJPE].Show More Inquiring people want to know, and manipulative people want to manipulate.

This Essay attempts to answer the “what really happened?” question with two points. First, from an immediate perspective, the revolution did not happen. On a statistical level, the neo-Brandeisians did not increase antitrust enforcement, and in many ways were less rigorous in bringing antitrust cases than previous administrations. (The reader should wait for more full explorations below before overreacting to this claim.) On a qualitative level, the neo-Brandeisians did attempt dramatic reform in many ways—jettisoning existing policies, implementing new, interventionist ones, advancing novel or “edgy” theories in merger and non-merger cases, and, especially, testing the FTC’s rulemaking authority through an aggressive rule prohibiting employment non-compete agreements.5.See infra Subsection I.A.1; infra Paragraph I.A.2.ii; infra Sections I.B, I.D.Show More But the neo-Brandeisians leave Washington with relatively little to show for these efforts. With some important exceptions, they were not successful in advancing their “edgy” theories, they did not bring and litigate to conclusion a single civil non-merger case, and the non-compete rule has been nationally enjoined and faces grim future prospects.6.See infra Paragraph I.A.2.ii; infra Sections I.B, I.D.Show More

Countervailing the first point, this Essay’s second point is that it is far too early to draw robust conclusions about the success or failure of the neo-Brandeisians’ attempted revolution. For one, some of the data regarding the last year or months of the Biden Administration are not yet available,7.See Competition Enforcement Database, U.S. Fed. Trade Comm’n [hereinafter FTC Competition Enforcement Database], https://www.ftc.gov/competition-enforcement-database [https://perma.cc/3AY9-R4WQ] (last visited Aug. 30, 2025) (showing that data for fiscal year 2024 is not yet published).Show More and several of the significant lawsuits brought by the Administration are still pending.8.See, e.g., Order, United States v. Apple, Inc., No. 24-cv-04055 (D.N.J. June 30, 2025) (denying Apple’s motion to dismiss); Memorandum Opinion and Order, United States v. Visa, Inc., No. 24-cv-07214 (S.D.N.Y. June 23, 2025) (denying Visa’s motion to dismiss).Show More That may take many more years. But there is an even more significant point about the need for patience: the neo-Brandeisians came to political power very early in the trajectory of their movement (perhaps too early for their own good).9.See infra notes 203–05 and accompanying text.Show More By comparison, the last revolutionary antitrust movement—the Chicago School—spent decades building its agenda through scholarship and socialization of its ideas to law students, lawyers, and judges before it achieved success in the courts and antitrust agencies.10 10.See infra notes 200–02 and accompanying text.Show More It is far too early to say what the ultimate outcome and influence of the neo-Brandeisian challenge, including the seeds sown in the last four years, will be. So, while answers to short-term questions about what the neo-Brandeisians did in Washington are largely available, any assessment must remain provisional for several decades to come.

  1.  See generally Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018) (describing the history and merits of the “New Brandeis School’s” philosophy and approach to antitrust policy); Zephyr Teachout, “The Long Future of the Neo-Brandeisian Movement, in Three Parts,” Network L. Rev. (July 24, 2024), https://www.networklawreview.org/teachout-future-neobrandeis/ [https://perma.cc‌/KWN3-J62J] (identifying Khan, Kanter, and Wu as key neo-Brandeisian figures).
  2.  Fred Lucas, Antitrust and Economic Leaders Have Links to Elizabeth Warren, D.C.J. (Dec. 6, 2023), https://www.dcjournal.com/antitrust-and-economic-leaders-have-links-to-eliz‌abeth-warren/ [https://perma.cc/UW5Z-5EAE].
  3.  Exec. Order No. 14,036, 3 C.F.R. 609 (2022).
  4.  See, e.g., Press Release, New Economic Liberties Report Takes a Close Look at Biden and Trump Antitrust Records, Am. Econ. Liberties Project (Oct. 30, 2024), https://www.economic‌liberties.us/press-release/new-economic-liberties-report-takes-a-close-look-at-biden-and-tru‌mp-antitrust-records/ [https://perma.cc/B2JY-7N2K]; Will Norris, Trump vs. Biden: Who Got More Done on Antitrust?, Wash. Monthly (Apr. 7, 2024), https://washingtonmonthly.com/20‌24/04/07/trump-vs-biden-who-got-more-done-on-antitrust/ [https://perma.cc/3W9T-YJPE].
  5.  See infra Subsection I.A.1; infra Paragraph I.A.2.ii; infra Sections I.B, I.D.
  6.  See infra Paragraph I.A.2.ii; infra Sections I.B, I.D.
  7.  See Competition Enforcement Database, U.S. Fed. Trade Comm’n [hereinafter FTC Competition Enforcement Database], https://www.ftc.gov/competition-enforcement-database [https://perma.cc/3AY9-R4WQ] (last visited Aug. 30, 2025) (showing that data for fiscal year 2024 is not yet published).
  8.  See, e.g., Order, United States v. Apple, Inc., No. 24-cv-04055 (D.N.J. June 30, 2025) (denying Apple’s motion to dismiss); Memorandum Opinion and Order, United States v. Visa, Inc., No. 24-cv-07214 (S.D.N.Y. June 23, 2025) (denying Visa’s motion to dismiss).
  9.  See infra notes 203–05 and accompanying text.
  10.  See infra notes 200–02 and accompanying text.

Fourth Amendment Trespass and Internet Search History

Browsing the internet is an everyday activity for many Americans. Law enforcement has capitalized on this reality by employing a novel investigative technique: reverse keyword search warrants. Keyword warrants allow investigators to obtain detailed information from search engine companies about any internet user who entered a specific phrase into the search engine. In recent years, the constitutionality of these warrants has sparked growing debate. Underlying this debate rests a critical threshold question: Does the Fourth Amendment require the government to obtain a valid warrant before accessing a person’s internet search data? Thus far, three courts have addressed the question, all reaching different conclusions.

One reason for the lack of consensus is that these courts have relied exclusively on the “reasonable expectation of privacy” test to determine whether a warrant is required to access search data. This Essay explains why assessing search data under the privacy framework leads to muddled analysis and contradictory conclusions, contributing to constitutional uncertainty. We urge courts to look instead to the traditional trespass test set out in United States v. Jones to determine whether the Fourth Amendment protects search data. By analyzing the issue through the lens of trespass, this Essay reaches a clear answer: accessing search data is a Fourth Amendment search. In doing so, this Essay adds urgency to the keyword warrant debate, advances Fourth Amendment doctrine in a rapidly evolving technological landscape, and helps realize the full protections of that constitutional guarantee.

Introduction

On July 19, 2016, someone broke into a Pennsylvania home and assaulted the woman living there.1.See Commonwealth v. Kurtz, 294 A.3d 509, 516–17 (Pa. Super. Ct. 2023), appeal docketed, 306 A.3d 1287 (Pa. 2023).Show More After spending two months exhausting their physical leads, law enforcement was still without a suspect.2.See Appellee’s Brief at 7–8, 12, Kurtz, 294 A.3d 509 (No. 811 MDA 2021).Show More So, investigators turned to Google.3.Kurtz, 294 A.3d at 517.Show More Specifically, they obtained a warrant directing Google to disclose detailed information associated with any user who searched the victim’s name or home address in the week preceding the attack.4.Id.Show More This novel investigative technique, known as a “keyword warrant,”5.Both throughout the literature and within this Essay, “keyword warrants” are referred to interchangeably as “keyword search warrants” or “reverse keyword search warrants.” For additional discussion regarding the mechanics of keyword warrants, see Helen Winters, Note, An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants, 107 Minn. L. Rev. 1369, 1387–89 (2023).Show More led investigators to John Edward Kurtz, who was later charged and convicted.6.Kurtz, 294 A.3d at 516–18.Show More On appeal, Kurtz challenged the warrant as unconstitutional, arguing that its omission of a named suspect violated the Fourth Amendment’s probable cause and particularity requirements.7.Appellant’s Brief at 12, 19, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). The constitutionality of keyword warrants has received significant attention. Some commentators have argued that keyword warrants are unconstitutional general warrants. See Chelsa Camille Edano, Comment, Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants, 97 Wash. L. Rev.977, 1000–02 (2022); Brian L. Owsley, Searching a Person’s Thoughts: Keyword Search Warrants and Fourth Amendment Concerns, 28 Stan. Tech. L. Rev.66, 102–03 (2025). Others have articulated theories supporting the warrants’ constitutionality. SeeMary D. Fan, Big Data Searches and the Future of Criminal Procedure, 102 Tex. L. Rev. 877, 925–27 (2024).Show More The constitutional sufficiency of the warrant was ultimately irrelevant to the case, however, because the court held that government access to Kurtz’s search data was not a search at all.8.Kurtz, 294 A.3d at 522.Show More Thus, no valid warrant was required to obtain his search data.9.The Fourth Amendment’s protections are not triggered unless a search or seizure occurs. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998).Show More

Commonwealth v. Kurtz raises a pressing question: Can the police access your internet search history without a warrant? Because it is not clear that a keyword warrant can ever be validly issued, the constitutionality of keyword searches may depend on the threshold question of whether it is a Fourth Amendment “search” that requires a warrant.10 10.See supra note 7.Show More As of this writing, however, no consensus answer has emerged: three state courts have addressed the question, and they have all reached different conclusions.11 11.Compare Kurtz, 294 A.3d at 522 (finding that no Fourth Amendment search occurred when the government used a keyword warrant), with People v. Seymour, 536 P.3d 1260, 1272 (Colo. 2023) (finding that a keyword warrant constitutes a search, but only under Colorado’s Constitution and not the Fourth Amendment), and Commonwealth v. Clements, 113 Va. Cir. 576, 591 (2024) (finding that the government engaged in a Fourth Amendment search when it employed a keyword warrant). No federal court has published an opinion addressing the question.Show More One reason for this uncertainty is that courts have relied on the familiar “reasonable expectation of privacy” framework to answer the threshold search question.12 12.See Kurtz, 294 A.3d at 521–23 (engaging exclusively with the Katz reasonable expectation of privacy framework when considering whether a keyword warrant is a search); Seymour, 536 P.3d at 1270–72 (same); Clements, 113 Va. Cir. at 590–91 (same).Show More

This Essay seeks to change that. Part I explains why applying the reasonable expectations test to search data produces contradictory results. Part II urges courts to look instead to the traditional trespass test endorsed in United States v. Jones to determine whether the Fourth Amendment protects search data. Though the Supreme Court has never applied the trespass test to intangible property, we explain why adopting this approach in the context of search data is consistent with Fourth Amendment jurisprudence and produces a clear answer: accessing search data is a search. Finally, Part III addresses the limitations of our trespass analysis and explores its impact on existing case law.

  1.  See Commonwealth v. Kurtz, 294 A.3d 509, 516–17 (Pa. Super. Ct. 2023), appeal docketed, 306 A.3d 1287 (Pa. 2023).
  2.  See Appellee’s Brief at 7–8, 12, Kurtz, 294 A.3d 509 (No. 811 MDA 2021).
  3.  Kurtz, 294 A.3d at 517.
  4.  Id.
  5.  Both throughout the literature and within this Essay, “keyword warrants” are referred to interchangeably as “keyword search warrants” or “reverse keyword search warrants.” For additional discussion regarding the mechanics of keyword warrants, see Helen Winters, Note, An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants, 107 Minn. L. Rev. 1369, 1387–89 (2023).
  6.  Kurtz, 294 A.3d at 516–18.
  7.  Appellant’s Brief at 12, 19, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). The constitutionality of keyword warrants has received significant attention. Some commentators have argued that keyword warrants are unconstitutional general warrants. See Chelsa Camille Edano, Comment, Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants, 97 Wash. L. Rev.

    977, 1000–02 (2022); Brian L. Owsley, Searching a Person’s Thoughts: Keyword Search Warrants and Fourth Amendment Concerns, 28 Stan. Tech. L. Rev.

    66, 102–03 (2025). Others have articulated theories supporting the warrants’ constitutionality. See Mary D. Fan, Big Data Searches and the Future of Criminal Procedure, 102 Tex. L. Rev.

    877, 925–27 (2024).

  8.  Kurtz, 294 A.3d at 522.
  9.  The Fourth Amendment’s protections are not triggered unless a search or seizure occurs. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998).
  10.  See supra note 7.
  11.  Compare Kurtz, 294 A.3d at 522 (finding that no Fourth Amendment search occurred when the government used a keyword warrant), with People v. Seymour, 536 P.3d 1260, 1272 (Colo. 2023) (finding that a keyword warrant constitutes a search, but only under Colorado’s Constitution and not the Fourth Amendment), and Commonwealth v. Clements, 113 Va. Cir. 576, 591 (2024) (finding that the government engaged in a Fourth Amendment search when it employed a keyword warrant). No federal court has published an opinion addressing the question.
  12.  See Kurtz, 294 A.3d at 521–23 (engaging exclusively with the Katz reasonable expectation of privacy framework when considering whether a keyword warrant is a search); Seymour, 536 P.3d at 1270–72 (same); Clements, 113 Va. Cir. at 590–91 (same).

The Right Thing in the Wrong Place? Unstable Dicta and Aesthetics’ Gradual Incursion Into the Traditional Police Power Justifications

Aesthetic regulation is fast becoming a pervasive feature of many cities’ and states’ zoning regimes. While aesthetics are often used in conjunction with other justifications for zoning—itself an exercise of the well-recognized but somewhat nebulously defined police power—the constitutional basis for aesthetics’ use as the sole justification for zoning decisions has not been closely examined by courts or academics. Over the past seventy years, the Supreme Court has steadily bolstered the legitimacy of solely aesthetic zoning by suggesting that it should be included among the other traditional police power justifications. Though most of the cases falling within this doctrinal trend look to dicta from the well-known Berman v. Parker for support, their approaches have largely failed to critically engage with the Berman Court’s justifications for aesthetic regulation. Current scholarship also takes the genesis of this doctrine for granted, appearing more interested in examining the conflicts that arise when aesthetic regulation brushes up against other areas of the law, such as the First Amendment’s guarantee of free expression or the disproportionate impacts that aesthetic regulation and restrictive zoning have on certain communities, than in examining the doctrine’s origins. This Note attempts to probe the instability of this growing doctrine’s foundations by examining solely aesthetic regulation’s complicated historicity and constitutionality. Ultimately, this Note suggests that recent trends indicate a new willingness by the Supreme Court to reexamine troubled dicta and tackle head-on the question of whether aesthetics may stand on their own as a legitimate justification for exercises of the police power.

“A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”1.Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).Show More

Introduction

This Note discusses aesthetic regulation’s entry into the traditional justifications for exercises of the police power, which include the health, safety, morals, and general welfare of the populace.2.See id. at 395 (“[B]efore the ordinance can be declared unconstitutional, [it must be said] that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (first citing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530–31 (1917); and then citing Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905))). Over one hundred years earlier, William Blackstone described the police power as the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations. 4 William Blackstone, Commentaries *162.Show More Though it is not contested that aesthetics may be part of a valid justification for regulatory exercises of the police power, especially when combined with one of the traditional justifications just listed, a more difficult question arises when one asks whether aesthetics alone may serve as a valid justification for exercises of this power, such as zoning.

As the slightly oxymoronic “gradual incursion” may suggest,3.Incursion, Oxford English Dictionary, https://www.oed.com/dictionary/incursion_n?tab=‌meaning_and_use (last visited Mar. 6, 2025) (“A hostile inroad or invasion; esp. one of sudden and hasty character; a sudden attack.” (emphasis added)).Show More the history of aesthetics’ entry into the pantheon of police powers was a convoluted one—at least before now-famous dicta in Berman v. Parker abruptly ushered aesthetics into the company of its police power predecessors.4.To be discussed in greater depth in Part II, these dicta in context state that [t]he concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. Berman v. Parker, 348 U.S. 26, 33 (1954) (emphasis added) (citing Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952)).Show More While widespread acceptance of this dicta over the past seventy years has led to steadily increasing support for aesthetics alone as a valid justification for exercises of the police power,5.See discussion infra Section II.C; infra Part III.Show More this Note examines how the Supreme Court’s treatment of this question has scarcely yielded definitive answers, and how largely uncritical interpretations of this dicta and the history behind it have produced a doctrine that is troubled and persistent in equal measure. In other words, this Note explores how aesthetic zoning—a sly cousin to the traditional justifications for exercises of the police power, developed largely through dicta rather than on its own merits—could be aptly described as a “right thing in the wrong place.”6.Euclid, 272 U.S. at 388.Show More

Property rights were never absolutely free from government regulation, even before much of the doctrine concerning police powers had fully developed. Rather than being hyper-focused on the triumph of the individual over the encroaching powers of the State, early American states often subordinated individual rights to the pursuit of the common welfare.7.See, e.g., Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 470 (1998). For the proposition that the public good took precedence over individual concerns throughout the eighteenth century, Professor Poindexter cites to John Jay’s 1790 Charge to the Grand Juries that “‘civil liberty consists, not in a right to every man to do just what he pleases,’ but only to do that which ‘the equal and constitutional laws of the county admit to be consistent with the public good.’” Id. at 470 n.177 (quoting Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 32 (1994)).Show More Two common law maxims, salus populi suprema est lex (“the welfare of the people is the supreme law”) and sic utere tuo ut alienum non laedas (“use your own right so as to not injure the right of others”), were pillars of American jurists’ vision of a well-regulated society and promoted a multitude of government restrictions on property rights.8.See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 42, 47 (1996).Show More The Supreme Court recognized the common law tradition of police power regulation as early as 1824 when Chief Justice Marshall declared that “[t]he right to use all property, must be subject to modification by municipal law. Sic utere tuo ut alienum non l[a]edas, is a fundamental maxim. It belongs exclusively to the local State Legislatures, to determine how a man may use his own, without injuring his neighbour.”9.Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53–54 (1824).Show More Other cases from this period also recognized limitations on property rights and offered sweeping, absolute statements in support of such regulation. For example, an early Massachusetts case stated that

[a]ll property in this commonwealth . . . [is] held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment . . . as the legislature . . . may think necessary and expedient.10 10.Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851); see also Novak, supra note 8, at 21 (arguing that Alger was “firmly entrenched in the intellectual, political, and legal traditions of nineteenth-century America”).Show More

The police power has long been thought of as a living, evolving concept, unburdened by strict rules or specific criteria.11 11.See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (“The term ‘police power’ connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of ‘reasonableness,’ this Court has generally refrained from announcing any specific criteria.”); see also Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995, 1011 n.78 (1997) (stating that “[n]either property nor police power is an absolute right; each evolves contextually and over time”).Show More Indeed, in Village of Euclid v. Ambler Realty Co., the Court stated that “while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.”12 12.272 U.S. 365, 387 (1926).Show More Thus, neither the brief, pre-twentieth-century review above, nor the more in-depth historical review to follow in Part II, is meant to suggest that even if aesthetics alone were historically a suspect candidate for the police power, they can never be a valid justification. Rather, the question is whether aesthetics, either alone or in combination with the other traditional justifications for exercises of the police power, are properly included in the category of “the general welfare” considering the latter’s broad judicial recognition at the time the doctrine was first being formed. Put differently, are aesthetics—then or now—a compelling enough contribution to the people’s welfare to justify diminutions in property rights?

Despite extensive study of the practical consequences of urban renewal programs and aesthetic regulation,13 13.See, e.g., Herbert J. Gans, The Failure of Urban Renewal, Comment. (Apr. 1965), https://‌www.commentary.org/articles/herbert-gans/the-failure-of-urban-renewal/ [https://perma.cc/P‌49G-MENC] (noting the displacement caused by urban renewal programs); Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, 823 Cato Inst. Pol’y Analysis, Oct. 18, 2017, at 1, 1–2, https://www.cato.org/policy-analysis/zoning-land-use-plan‌ning-housing-affordability [https://perma.cc/UZM4-CGRU] (concluding that the rise in aesthetic regulations has caused many cities to face housing affordability challenges).Show More and strong scholarly censure of the Supreme Court’s interpretation of the Fifth Amendment’s “Public Use” Clause to justify economic regulation and urban renewal programs in decisions like Berman and Hawaii Housing Authority v. Midkiff,14 14.For a few representative works discussing the Supreme Court’s Public Use Clause jurisprudence, see Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 178–79 (1985) (arguing that the Supreme Court’s interpretation of the public use standard in Berman did not fall under traditional conceptions of the public use requirement and that its necessity argument merely belied the “state’s desire to transfer property between private parties”); Margaret Jane Radin, Reinterpreting Property 136 (1993) (arguing that “the term ‘public use’ has recently been interpreted as broadly as possible” in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)).Show More few authors have turned their attention specifically toward aesthetic regulation’s suspect historicity and constitutionality. This Note attempts to fill that analytical gap by examining the development of aesthetic regulation within the police powers doctrine from the pre-Berman era to the present, post-Berman age. It proceeds in four parts: Part I provides a brief grounding in the real-world impacts that aesthetic regulation has on the ongoing housing availability and affordability crisis as a form of restrictive zoning. Part II examines the development of aesthetics as a possible addition to the traditional police power justifications, dividing the inquiry into three distinct periods. The first period, discussed in Section II.A, focuses on early doctrinal trends in what this author terms the “pre-Berman period.” It posits that although courts initially found aesthetically motivated regulation inimical to proper exercises of the police power, the Supreme Court became comfortable accepting post hoc aesthetic justifications for exercises of the police power when the highest court of a state would do so. This tentative comfort was far from universally accepted, however, as other courts during this time insisted that exercises of the police power were to be reserved for necessitous circumstances, holding that such necessity did not include cities’ desire to regulate property to achieve aesthetic goals.

The second period, discussed in Section II.B, focuses on two decisions that ushered aesthetics further into the family of police power justifications, Euclid15 15.272 U.S. at 388.Show More and Berman.16 16.348 U.S. 26, 33 (1954).Show More While these cases have been used by the Supreme Court to justify the constitutionality of aesthetic regulation and to hint at the possible constitutionality of purely aesthetic zoning (though such a case has not yet reached the Court), a close reading of Euclid and Berman suggests that aesthetic zoning was to be used in only a very narrow set of circumstances. Section II.C discusses Berman’s progeny and examines how extensively its dicta have been distorted as more cases involving aesthetic regulation have reached the Court. Part III briefly discusses trends at the state level toward an acceptance of aesthetic and purely aesthetic regulation. Finally, Part IV examines recent trends in the Supreme Court that may suggest an awakening to the faltering legal foundations of aesthetics as a valid police power justification.

  1.  Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).
  2.  See id. at 395 (“[B]efore the ordinance can be declared unconstitutional, [it must be said] that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (first citing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530–31 (1917); and then citing Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905))). Over one hundred years earlier, William Blackstone described the police power as

    the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations.

    4 William Blackstone, Commentaries *162.

  3.  Incursion, Oxford English Dictionary, https://www.oed.com/dictionary/incursion_n?tab=‌meaning_and_use (last visited Mar. 6, 2025) (“A hostile inroad or invasion; esp. one of sudden and hasty character; a sudden attack.” (emphasis added)).
  4.  To be discussed in greater depth in Part II, these dicta in context state that

    [t]he concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.

    Berman v. Parker, 348 U.S. 26, 33 (1954) (emphasis added) (citing Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952)).

  5.  See discussion infra Section II.C; infra Part III.
  6.  Euclid, 272 U.S. at 388.
  7.  See, e.g., Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 470 (1998). For the proposition that the public good took precedence over individual concerns throughout the eighteenth century, Professor Poindexter cites to John Jay’s 1790 Charge to the Grand Juries that “‘civil liberty consists, not in a right to every man to do just what he pleases,’ but only to do that which ‘the equal and constitutional laws of the county admit to be consistent with the public good.’” Id. at 470 n.177 (quoting Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 32 (1994)).
  8.  See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 42, 47 (1996).
  9.  Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53–54 (1824).
  10.  Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851); see also Novak, supra note 8, at 21 (arguing that Alger was “firmly entrenched in the intellectual, political, and legal traditions of nineteenth-century America”).
  11.  See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (“The term ‘police power’ connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of ‘reasonableness,’ this Court has generally refrained from announcing any specific criteria.”); see also Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995, 1011 n.78 (1997) (stating that “[n]either property nor police power is an absolute right; each evolves contextually and over time”).
  12.  272 U.S. 365, 387 (1926).
  13.  See, e.g., Herbert J. Gans, The Failure of Urban Renewal, Comment. (Apr. 1965), https://‌www.commentary.org/articles/herbert-gans/the-failure-of-urban-renewal/ [https://perma.cc/P‌49G-MENC] (noting the displacement caused by urban renewal programs); Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, 823 Cato Inst. Pol’y Analysis, Oct. 18, 2017, at 1, 1–2, https://www.cato.org/policy-analysis/zoning-land-use-plan‌ning-housing-affordability [https://perma.cc/UZM4-CGRU] (concluding that the rise in aesthetic regulations has caused many cities to face housing affordability challenges).
  14.  For a few representative works discussing the Supreme Court’s Public Use Clause jurisprudence, see Richard A. Epstein, Takings: Private Property and the Power of Eminent

    Domain 178–79 (1985) (arguing that the Supreme Court’s interpretation of the public use standard in Berman did not fall under traditional conceptions of the public use requirement and that its necessity argument merely belied the “state’s desire to transfer property between private parties”); Margaret Jane Radin, Reinterpreting Property

    136 (1993) (arguing that “the term ‘public use’ has recently been interpreted as broadly as possible” in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)).

  15.  272 U.S. at 388.
  16.  348 U.S. 26, 33 (1954).