Commentary: A Bold Response to Kelo

By Lyle Denniston
on Jun 27, 2005 at 9:24 pm

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.