Commentary: A Bold Response to Kelo
Sen. John Cornyn, a Texas Republican, moved swiftly on Monday to narrow the effects of the Supreme Court’s decision last Thursday that upheld broad government power to seize private property to turn over for profit-making economic development. Cornyn’s new bill, S. 1313, would lay down a congressional definition of “public use,” far narrower than the Court’s constitutional interpretation in Kelo v. City of New London (04-108). The measure raises immediately the question of Congress’ power to write its own definition, and put it into effect.
Although Cornyn’s proposal, and his floor statement announcing it, do not spell out Congress’ constitutional authority to adopt the legislation, it appears that part of it is based upon the Necessary and Proper Clause, some notion of federal police power, and, to a degree, the Commerce Clause), and part of it is based upon the Spending Clause. (The bill’s findings say that “it is appropriate for Congress to take action, consistent with its limited powers under the Constitution, to restore the vital protections of the Fifth Amendment and to protect homes, small businesses, and other private property rights against unreasonable government use of the power of eminent domain.”)
It does not recite what those “limited powers” of Congress are. But, by using the phrase “restore the vital protection of the Fifth Amendment,” it appears that the measure would be an attempt by Congress to define what the Fifth Amendment means. That phrase seems to directly challenge the Court’s view that the Fifth Amendment’s protection does not forbid the use of eminent domain for economic development purposes. It brings to mind Congress’ effort in the Religious Freedom Restoration Act, seeking to undo the Court’s decision in Smith v. Employment Division (1990) – a bold effort that the Supreme Court struck down in City of Boerne v. Flores (1997).
Here, without the 13 “findings,” is the operative part of the Cornyn bill:
“( a ) In General. – The power of eminent domain shall be available only for public use.
“( b ) Public Use. – In this Act, the term ‘public use’ shall not be construed to include economic development.
“( c ) Application. — This Act shall apply to –
(1) all exercises of eminent domain power by the Federal Government, and
(2) all exercises of eminent domain power by State and local government through the use of Federal funds.”
S. 1313 is, of course, a long way from passage at this point. It already has found favor, however, among property rights advocates. The Institute for Justice, a public interest advocacy group that was directly involved in Kelo, praised the bill as a measure “to curb the abuse that threatens every American” as a result of the Kelo decision.
It seems to me that federal power in this area could be exercised through the enabling clause of the Fourteenth Amendment. It is hard to object to legislatively enacted substantive Due Process. After all, that is what most federal interference in the states’ police power is (in my state “police power” is defined as the “greatest good for the greatest number”.) Castle Rock v. Gonzalez, also rendered today, led me down this path of thought. Reading that decision it was not hard to see that without a federal anti-lynching law (enabling act) lynchings were taking place a hundred years after the passage of the Fourteenth Amendment because local police could “exercise their discretion” to ignore or trivialize the pleas for protection of the victims. This Supreme Court may be nine of the finest legal minds in the country with a combined experience of roughly four hundred years years but ….
Comment by nk — June 27, 2005 @ 10:55 pm
Congress can limit its powers through its own legislation. The Constitution only defines the powers that Congress can use at its limit. It cannot go beyond those limits.
For example, for eminent domain legislation Congress could create a bill that says it (the Federal government) can only use the powers for road construction. On what basis could a plaintiff sue based on that legislation? The legislative body is what determines “public use”, not the Courts. A federal agency wishing to acquire property under eminent domain not for road construction under the example above would not be able to sue.
What would be their position? THEY get to decide what is public use? THe Court gets to decide what is public use? Clearly that would be an abuse of power.
Comment by Mark — June 27, 2005 @ 11:06 pm
Cornyn’s bill clearly doesn’t invoke any Boerne powers. C1 is merely a restriction on exercises of emninent domain power by the Federal Government, which is to say it is just an amendment of every statute or doctrine that currently authorizes federal eminent domain (just like RFRA is as applied to the *federal* government). It thus is constitutional exactly to the extent that those eminent domain powers are in the first place. C2 is straight-spending clause regulation, and such that even Thomas’s Sabri concurrence could love it.
Politically, the bill may or may not be bold (I think it is wholly desirable) but constitutionally it is so un-bold as to be un-assuming.
Comment by Will Baude — June 27, 2005 @ 11:39 pm
LD wrote: “It brings to mind … a bold effort that the Supreme Court struck down in City of Boerne v. Flores (1997).”
Here, the difference is that Congress has the power under the Spending Clause to enact this legislation, as it only applies to state public-works projects involving federal funds. In that regard, it’s much different than Boerne. If anything, the legislation is not broad enough. Under Sabri, I don’t see why Congress couldn’t (effectively) limit every state and local exercise of its eminent domain power.
Comment by Mike — June 28, 2005 @ 12:49 am
In addition, I saw Rep. Maxine Waters (D-Cal) on C-Span Monday evening denouncing the Kelo decision and stating that she was going to work with “the other side of the aisle” in fighting eminent domain abuse. If she and the Black Caucus, plus conservative house members, get behind this, Cornyn’s bill, or one like it, might really have legs.
Comment by Anthony Sanders — June 28, 2005 @ 2:12 am
Unfortunately, its states that commit some of the worst abuses of eminent domain. not the federal government. The worst part is that with the increasing role states are playing in local zoning decisions (at least in some states), they can be fairly blatant about using down zoning and failure to grant approvals to devalue properties, thereby even depriving owners of receiving fair value.
Comment by kim — June 28, 2005 @ 10:06 am
It seems like the statute would be a lot more useful if, uh, it actually defined what “economic development” means. I think the reason it appeals to people in its present form is because they take it to mean whatever they want it to mean. Of course, maybe that’s the point.
The bill is also odd in that the use of eminent domain for economic development has been going on for decades. Whatever one takes Kelo to mean, isn’t it quite an overreaction to Kelo to try and do away with this practice altogether?
What’s striking, politically speaking, is that the states’ rights movement seems to have no voice in Washington whatsoever right now.
Comment by Steve — June 28, 2005 @ 10:43 am
Congress to the Rescue on Kelo?
Senator Jon Cornyn (R-Texas) has introduced a bill to limit federal eminent doma…
Comment by A Stitch in Haste — June 28, 2005 @ 12:02 pm
I agree with Steve(6/28/05) that it is the lack of operational objective definitions which gives rise to the abuse of power by all government officials whose opinions are often more subjective & reactionary than those of conscientious objectors. I think it is dangerous to our democratic nation to increase the power of government to self – indulge in subjective interpretations & not be held to the same legal standard of burden of proof to which our citizenry are now subjected.
On June 23rd when I heard of the Kelo decision, it struck me as yet another move to undermine the public’s ability to ever meet any burden of proof when the subjective opinions of government officials have determined what is in the public’s best interest. However, I was even more disturbed by the fact, that arbitrarily increasing federal & state powers in this way, results in making a mockery of the meaning of home OWNERSHIP. While every other aspect of financial, healthcare & retirement planning has been reduced to nothing more than a gamble in the big casino of world economics, the one thing that “we, the people” could still control was the certainty of keeping our roof over our heads and the promise of a fair return on the one investment that didn’t require advanced gambling skills. It seems that our illustrious Supreme Court is unaware that gambling is the gateway drug for the disease of gambling addiction, and that their recent Kelo decision is opening Pandora’s Box to unleash the full power of our already addicted society. Perhaps they should add a requirement that some of the massive profits from lands stolen from the people in favor of some arbitrarily determined public good, be donated for the provision of homeless shelters for the masses whose gambling on the future security of their home, is destined to fail just as surely as the majority who enter a casino are destined to lose.
Comment by Eileen — June 28, 2005 @ 12:20 pm
I think Kelo can have a harmful effect on municipalities. If a municipality uses eminent domain procedures to take private property and give that property to a private interest for development, then isn’t the municipality liable for damages thereby inflicted on other existing businesses?
Inverse condemnation is the theory for requiring compensation to a private party for change in property value of another caused by the actions of a public agency. If a city installs a drain pipe or removes a road that reduces the market value of private property, the private property owner can demand compensation from the public agency.
In California, Public Utilities Code 1501 et seq.(this code section just refers to water utility service) states that whenever a government agency constructs facilities to any service area of a private utility with the same type of service, such an act constitutes a taking of the property of the private utility for a public purpose if the private utility is injured by reason of any of its property being made inoperative, reduced in value or rendered useless to the private utility for its utility service.
It seems reasonable that if the government agency takes land and gives a permit for development, that the agency is therefore liable to damages to existing businesses.
Comment by Martin — June 28, 2005 @ 12:31 pm
It might be helpful for us to examine the bill, which is available here: http://tinyurl.com/a28ez
It reads, in relevant part: “The power of eminent domain shall be available only for public use…. In this Act, the term “public use” shall not be construed to include economic development.” The Act covers “all exercises of eminent domain power by State and local government through the use of Federal funds.”
Thus, some would say there is a Boerne issue: namely that Congress is trying to use its 14A power to define, rather than enforce, the Takings Clause. However, since the Act only covers “eminent domain power by State and local government through the use of Federal funds” then Congress plainly has the power under the Spending Clause to enact this legislation.
The Spending Clause, we’ll remember, was the hook used to apply RLUIPA to state prisons. And, as Sabri demonstrated, it’s expansive. There’s no Boerne issue, and the law is a constitutional exercise of the Spending Clause.
Comment by Mike — June 28, 2005 @ 2:44 pm
While I don’t disagree with the concept that this proposed legislation is only constitutional if it is limited to projects using federal funds, it’s not as though federal land development restrictions are not already creeping into local land use law and trumping it right and left. In my jurisdiction this is most prevelant in the incorporation of federal standards of protection being applied to wetlands and floodplains. So property owners have to beg the Corp of Engineers for a permit to cross a stream on their own land, but the same federal government can’t save that same property owner from having his or her entire property taken for a football stadium and paved over completely. Makes tons of sense.
Comment by kim — June 28, 2005 @ 4:13 pm
May the farce be with you.
It seems preposterous to me that we have reached a stage where the Congress of the United States feels itself required to pass a law which substantively says nothing which is not already in the Constitution, for no reason other than the inability of the Supreme Court to read the text which they have sworn to uphold. The Cornyn bill says “The power of eminent domain shall be available only for public use”; the 5th Amendment says “nor shall private property be taken for public use without just compensation”. Spot the difference!
I have more extensive comments on this over at prawfsblawg:
http://prawfsblawg.blogs.com/prawfsblawg/2005/06/democracy_in_ac.html?
Comment by Simon — June 28, 2005 @ 6:19 pm
Maybe I’m just showing my ignorance of Con Law (since I’m taking it this upcoming fall and spring), but under the Court’s expansive definition of “interstate commerce” in Raich and affirmation of the holding in Wickard, couldn’t Congress restrict even the States’ takings as a regulation of interstate commerce?
From how I read Raich (with the caveat of the narrow exceptions of Lopez and Morrison), it seems pretty ironclad that Congress can restrict such economic development takings in non-blighted areas without a plausible challenge as to whether they have the constitutional authority to do so.
Comment by GMU Law Student — June 30, 2005 @ 9:50 am