Comments on: Commentary: A Bold Response to Kelo

By: GMU Law Student

GMU Law Student — Thu, 30 Jun 2005 13:50:29 +0000

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.

By: Simon

Simon — Tue, 28 Jun 2005 22:19:35 +0000

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?

By: kim

kim — Tue, 28 Jun 2005 20:13:56 +0000

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.

By: Mike

Mike — Tue, 28 Jun 2005 18:44:30 +0000

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.

By: Martin

Martin — Tue, 28 Jun 2005 16:31:53 +0000

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.

By: Eileen

Eileen — Tue, 28 Jun 2005 16:20:16 +0000

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.

By: A Stitch in Haste

A Stitch in Haste — Tue, 28 Jun 2005 16:02:48 +0000

Congress to the Rescue on Kelo?

Senator Jon Cornyn (R-Texas) has introduced a bill to limit federal eminent doma…

By: Steve

Steve — Tue, 28 Jun 2005 14:43:49 +0000

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.

By: kim

kim — Tue, 28 Jun 2005 14:06:33 +0000

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.

By: Anthony Sanders

Anthony Sanders — Tue, 28 Jun 2005 06:12:43 +0000

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.