There was an illuminating exchange in Rep. Nancy Pelosi's press conference yesterday regarding Sen. Cornyn's bill that would restrict the use of federal funds in cases where eminent domain is used for economic development purposes. Here's the excerpt:
- Q Later this morning, many Members of the House Republican leadership, along with John Cornyn from the Senate, are holding a news conference on eminent domain, the decision of the Supreme Court the other day, and they are going to offer legislation that would restrict it, prohibiting federal funds from being used in such a manner.
Two questions: What was your reaction to the Supreme Court decision on this topic, and what do you think about legislation to, in the minds of opponents at least, remedy or changing it?
Ms. Pelosi. As a Member of Congress, and actually all of us and anyone who holds a public office in our country, we take an oath of office to uphold the Constitution of the United States. Very central to that in that Constitution is the separation of powers. I believe that whatever you think about a particular decision of the Supreme Court, and I certainly have been in disagreement with them on many occasions, it is not appropriate for the Congress to say we're going to withhold funds for the Court because we don't like a decision.
Q Not on the Court, withhold funds from the eminent domain purchases that wouldn't involve public use. I apologize if I framed the question poorly. It wouldn't be withholding federal funds from the Court, but withhold Federal funds from eminent domain type purchases that are not just involved in public good.
Ms. Pelosi. Again, without focusing on the actual decision, just to say that when you withhold funds from enforcing a decision of the Supreme Court you are, in fact, nullifying a decision of the Supreme Court. This is in violation of the respect for separation of church -- powers in our Constitution, church and state as well. Sometimes the Republicans have a problem with that as well. But forgive my digression.
So the answer to your question is, I would oppose any legislation that says we would withhold funds for the enforcement of any decision of the Supreme Court no matter how opposed I am to that decision. And I'm not saying that I'm opposed to this decision, I'm just saying in general.
Q Could you talk about this decision? What you think of it?
Ms. Pelosi. It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken. It's an elementary discussion now. They have made the decision.
Q Do you think it is appropriate for municipalities to be able to use eminent domain to take land for economic development?
Ms. Pelosi. The Supreme Court has decided, knowing the particulars of this case, that that was appropriate, and so I would support that.
I'll give her a mulligan for the ludicrous misunderstanding about withholding funding for the Court. Doh!
But to go on and claim that such a measure would be "withhold[ing] funds from enforcing a decision of the Supreme Court" is almost as inexplicably ludicrous. I'n no legal scholar, but it still seems pretty clear to me that the fact that an activity has been deemed Constitutional by the Court has no bearing on Congress' willingness to allocate (or remove, as the case may be) funding for that activity.
A commenter on Volokh's site agrees: "The funniest thing (IMHO) about Pelosi's comment is that she doesn't understand the Supreme Court's role at all. The Court has set the boundary of the eminent domain power. There is no requirement that Congress go all the way to that boundry, nor is there any requirement that Congress fund anything ever. Art. 1, ß 8 of my copy of the Constitution says that funding is completely within the purview of the congress. How is it that the House Minority Leader doesn't understand the relative roles of congress and the supreme court? Can anyone explain that?"
Another is even more direct: "How about a bill appropriating federal funds to teach Rep. Pelosi that when the Supreme Court rules that a practice is constitutional, the practice is not mandatory?"
Ouch. Well deserved, though. And it is indeed frustrating that someone in her position can't even articulate a response to the "what do you think about eminent domain" question. It is simply not a serious position for a legislator to say that "I agree with whatever the Court says." When even Bernie Sanders and Tom Delay are in agreement on a decision like this, you'd think that the door is wide open to take off the partisan filter and speak freely as a citizen.