The Kelo Knee Jerk

As you know, I am quite upset about Kelo v. New London. It was, as far as I am concerned, an awful decision and inconsistent with the text and meaning of the 5th Amendment. I encourage everyone to work on state constitutional amendments or legislation to limit the powers of your states and local governments.

The reform can take several forms, including limiting the "public use" in which condemnation may be used, defining liberally for the land owner the meaning of "just compensation" and setting up cost efficient procedures so that the land owners do not need to spend their "just compensation" on attorneys' fees (but that is OK if they want to). This can be done. Eight states, Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington, already ban the use of eminent domain for economic development purposes.

Just because I think Kelo was a bad decision, it does not follow that I back Federal legislation to limit state and local governments' use of eminent domain.

U.S. Sen. Orrin Hatch on Tuesday announced plans to introduce a bill giving land and homeowners more protections. The Utah Republican called the court's June 23 ruling in Kelo v. New London "alarming" because it gives the government unprecedented abilities, but intends to curb that with the EMPOWER Act, which Hatch said he will introduce next week.

The act would force governments to fairly negotiate with property owners, including the payment of fair compensation. It would also establish a federal ombudsmen's office to inform property owners of their rights and order disputes into mediation, if needed.

Hatch isn't the only one in Congress unhappy with the high court ruling. So far at least five other senators and representatives have announced plans for legislation to chip away at the court's decision.

This article never says what these bills propose to do. Congress certainly has every right to limit the Federal government's use of eminent domain. Thus, Congress could require that all Federal eminent domain use be consistent with "public use" as the dissenters argued. We know though that the Feds don't use eminent domain for economic development. Thus, the article leads me to believe that Congress is going to make this law applicable to State and local governments as well. There is my problem.

Let me be perfectly clear here. The Federal constitution grants Congress limited powers. If the power is not included in the Constitution, Congress doesn't have it. The fact that the Supreme Court has given the States more power under the Federal constitution that they should have does not mean that Congress has the power to legislate in those same areas, even if I support the public policy.

Congress was never granted authority in the Constitution to control a State's use of eminent domain. I suppose the argument for such authority will come from two places: the commerce clause (of course) and Section 5 of the 14th Amendment.

I could easily draft the arguments for either provision, and the liberal Supreme Court justices would no doubt agree with them. Still, I'm not buying either one. Eminent domain as applied in Kelo is the taking of real property. Real property has always been considered a local issue. The only local property regulation that Congress has ever been allowed to get away with (that I can think of) has been some sort of environmental regulation.

The State's use of eminent domain needs to be curtailed, but it needs to be curtailed at the State level. The Feds don't have, in my opinion, the Constitutional authority to tell local governments how to use their so called proper eminent domain power.

That said, there is one way the Feds can certainly regulate the States. Under South Dakota v. Dole, an opinion with which I strongly disagree, the Feds can place significant strings on the State use of Federal money. Lots of local "economic development" projects are done with some Federal money. The Feds could, under the law as currently interpreted, limit the use of eminent domain on any project using Federal money. Since that type of State regulation is OK, even though I don't like it, I think Congress could and would get away with that.

I am aware of the irony here. The same conservative principles that would have limited Kelo in the first place would also result in a decision to limit Congress' power to fix the problem created by the liberal justices.

The good news is that the Commerce clause has been so stretched out of proportion, Congress will probably be allowed to pass legislation setting national eminent domain guidelines despite the encroachment on Federalism principals.