Following up on issues from a diary I’d posted at dKos about a month ago on Congressional efforts to restrict the scope of the Supreme Court’s ruling in Kelo v. City of New London, it seemed appropriate for an update, given this week’s front-page article on the topic in The National Law Journal.
Kelo, as you may recall, ignited a firestorm of protest across the entire political spectrum of the blogosphere over its finding that municipalities had the right to employ their eminent domain powers to seize private property solely for the purpose of economic development.
Now, in addition to the bills pending in Congress (see the older diary), at least 28 states have swung into action in various legislative attempts to blunt the impact of the Court’s decision.
More below.
Since the Supreme Court announced its decision in Kelo on June 23, the grassroots of both left and right were generally quite vociferous in condemning what they viewed as a significant expansion of government’s ability to “seize” (a somewhat poor use of the word, since owners must be compensated with the fair market value of their property) privately-held land and structures. The ruling interpreted the Fifth Amendment phrase “public use” broadly enough so as to encompass a mere net economic benefit (say, through higher local tax revenues) even when a building or neighborhood slated for condemnation would not otherwise be deemed “blighted”. This distinguished the current matter from, for example, the urban renewal efforts of the 1950s and 1960s.
The principal objections on the left seemed to center around the significant influence of well-funded corporate interests and developers, specifically regarding their ability to sway local governments and/or community boards with promises of economic improvement. Such “improvements” might include construction jobs and continuing commercial employment, as well as the prospect of higher tax revenue streams: “Why not replace these 40 houses with this lovely tony shopping plaza and marina?!”
“Ordinary citizens, I think, never realized that their homes and businesses could be taken from them because somebody else with more money wanted to move in there. . . . I think very few people realized how out of control matters had gotten in the courts.”
On the right, conservative groups, led by old-style libertarians, were distressed by the Court’s grant of authority for government to seize any private holdings, which to their minds should remain inviolate. They had hoped that the Court would severely restrict the takings clause and elevate the primacy of individual ownership. (Without getting into a whole discussion of that issue, conservatives were looking to eviscerate practically every zoning ordinance and land use restriction.)
Perhaps because Kelo upset people all over the political map, potential legislative responses have been exceedingly swift in coming. As The National Law Journal points out, in barely over five weeks since the ruling, “lawmakers in 28 states have introduced more than 70 bills.” These are clearly going to require some sorting out, and, as with the proposed federal legislation, once passed any of these new laws will almost assuredly be subject of new court challenges.
Legislators in Texas, Florida, Oklahoma, New Jersey and Michigan are mobilizing to support state constitutional amendments prohibiting eminent domain for private development.
In California, which has some of the strictest proposed legislation, two bills would prohibit the exercise of eminent domain for private use under any circumstances, while lawmakers in Texas, Minnesota, Delaware and Connecticut would simply limit the use of eminent domain for private projects or tighten eminent domain procedures.
In addition to the above-mentioned states, the movement has also taken root in Georgia and Alabama, where bills would prohibit use of eminent domain for the purposes of “improving tax revenue” and for “retail, office, commercial or residential development”, respectively. What’s particularly notable is that these legislative efforts are generally being spearheaded by ideologically-driven Republicans. For example:
“I think we’ve pushed the envelope on the original concept of eminent domain to an untenable point,” said Colorado state Representative Al White, who is drafting a constitutional amendment to prevent local governments from taking private property for private development.
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Ohio state Senator Kevin Coughlin agreed, saying that the recent high court ruling sounded an alarm for legislators nationwide who scrambled to protect property owners’ rights.“It’s on the minds of legislators all over the country, there’s no doubt about that,” said Coughlin, who is circulating a bill to block state funds to municipalities that take for economic development private property that is not considered blighted.
“The idea that you would take a block of homes and let some other private owner put a hotel on it because it would generate more tax revenue is pushing it too far and the court has basically allowed that,” Coughlin said. “I think that the framers never intended for eminent domain to be used for that purpose or for that to be considered a public use.”
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In California, for example, state Senator Tom McClintock has proposed a constitutional amendment that would “prohibit the use of eminent domain for private use under any circumstances.”“To take one person’s property and give it to another-there’s a word for it. It’s a simple word. It’s called theft,” said McClintock, arguing that the Kelo decision “shredded” people’s property rights.
All three of these legislators are proud members of the GOP. In introducing his proposed state constitutional amendment a few days ago, Coughlin added this: “We must have a clear, statewide policy in place if only to provide families with the peace of mind that the homes they have built won’t be taken away at the whim of an overzealous government body.”
As the NLJ article describes, state constitutional amendments, while obviously more difficult and time consuming to achieve, offer far better guarantees of preventing eminent domain abuse. As private attorney Alan Ackerman of Michigan notes,
“If you legislate it, you can take it away in a heartbeat without the vote of the people. . . . Legislation will never be given full force in effect. It will be cut at and chipped away at. There is such pressure by the large institutions that over a period of time they somehow move courts toward a reading or an analysis that is very limiting for the property owner.”
Similarly, a senior attorney for the Washington-based libertarian public interest group Institute for Justice noted that in Texas, where eight separate bills are already pending, “corporate pressure and heavy lobbying is already taking effect”. A constitutional amendment there is much less likely now, and the attitude now seems to be, “They knew they had to do something, but when the time came that it meant that people would have to give up their pet projects, they just couldn’t do it. We’ll see if they pass anything at all.” Echoing that sentiment, another lawyer from Fort Worth said, “I suspect most of this is going to die on the vine. People were so angry about it and so mad about Kelo, but as the interest cools, I suspect we’re not going to see sweeping changes in eminent domain law because cities and states are weighing in and saying, ‘Don’t kill my project.'”
So where is all this going? Will it all turn out to be a tale full of sound and fury, signifying nothing? Or are we witnessing an effective maneuver by the GOP to get out in front of an issue likely to have lasting resonance with homeowners, who are a rather large constituency? Although Democrats are not actively opposing these state-based efforts, can they afford to cede leadership over this politically fertile ground to the Republicans? Stay tuned.
(Cross-posted at dKos)
