Monday, July 18, 2005

Legislative Action against Kelo

The Supreme Court’s decision in Kelo v. City of New London has certainly hit some political nerves. This past week bills were introduced in both houses of Congress to limit eminent domain power. (See S. 1313 and H.R. 3135).

The language used to achieve this purpose is very brief:

(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.

To the extent that state or local governments are not using federal funds, then this bill will apparently not provide protection. Similar legislation would be needed at the state level to achieve protection from the takings power. Alternatively, as I have previously suggested, the state could simply require that such takings for public use be at a multiple of FMV to compensate the owner for the forced taking. In this way, the politicians who seek to pursue economic development plans have to pay up for the privilege – and hopefully their constituents will hold them accountable for foolish uses of public funds. (Then again, we don’t have such a good record on that account given what our government sees fit to fund.)



Charles said...

Is this simply intended to protect the federal government's image by applying this new set of standards, while still endorsing the practice so long as local government does not use federal funds to do so?

What is the degree of separation of federal funds? I'm sure every local government in some capacity recieves federal funding. How many degrees of separation are to be intended before this does not apply?

Finally, does this actually mean that the government expects state and local legislation to provide or not provide protection for the remaining scenarios? Or will the federal government be expecting to enact further legislation to include these scenarios?

Ed Morse said...

I don't know if this is image burnishing, but I think the real issue will involve state and local government powers in eminent domain proceedings. I think the constraint here is probably based on the ideal of limited enumerated powers. Though one might argue that the commerce clause empowers them to do more, depending on how one reads recent precedents in that area, there is still room for local action in this area. Thus, the biggest practical problems are unaddressed by this legislation. Thanks for your comments.