On Monday I posted a link to federal legislation introduced by Sen. Cornyn that would limit the use of eminent domain for economic development purposes when federal funds are involved. My initial reaction was that Eugene Volokh was right: this bill would mainly serve a symbolic purpose, since it only applies to situations in which federal funds are used in the exercise of the eminent domain power. It likely wouldn’t put much of a dent in the rampant state and local abuse of eminent domain. And if passed, I think that the symbolic effect of the legislation could possibly be counterproductive, as many people currently aghast at the Kelo decision may feel satisfied that Congress has “done something” and subsequently think that the issue has been adequately addressed. Hence, a “take your eyes off the ball” effect, which could potentially diminish public enthusiasm for state-level legislative efforts to address eminent domain abuse. But for those of us that aren’t lawyers, the legal – rather than political and social – ramifications of such a bill can be somewhat esoteric, so it is always helpful when legal experts weigh in with their opinions. What follows are a handful worth considering. According to Hillel Levin on Prawfsblawg, the bill is evidence of democracy in action:
Yesterday, I argued that Kelo was fully consistent with precedent and democratic majoritarianism–a two-fer for the committed conservative. I also suggested that those offended by the decision should move to pass a law at the local, state, and/or federal level…It turns out that Congress is listening! . . . . As a policy matter, this may or may not be a good idea–I make no claims. But it is democracy in action, and it is precisely the kind of conversation we want between the branches of government.
Lyle Denniston at SCOTUSblog suggests that the bill may run afoul of the Constitution (read the whole thing for details):
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]. The measure raises immediately the question of Congress’ power to write its own definition, and put it into effect.
Blogger Will Baude at Crescat Sententia offers a counterargument:
Cornyn’s bill restricts federal eminent domain power quite severely, but this is constitutional if the eminent domain power is permissible in the first place– just as Congress can repeal or partially repeal statutes, and just as RFRA (establishment and severability challenges aside) could still be applied to the U.S. Code. Cornyn’s bill also restricts state/local governments but only to the extent they directly use government money– this is spending clause power that even Justice Thomas would uphold. However bold the bill may be politically, it is surely one of the most constitutionally unassuming things to come out of the 109th Congress.
Setting aside constitutionality issues, lawblogger KipEsquire from A Stitch in Haste is wary of the bill:
Um, gee thanks, but I wonder whether this bill could actually be detrimental from a libertarian perspective. . . . . Here’s yet another example of myopic, consequentialist libertarians seeing only the ends and completely ignoring the atrocious means by which we get there. It’s the Internet wine cases all over again: what’s a little lost textualism among “libertarians” when there’s Internet wine to buy? But how are these same libertarians going to feel, after cheering the federal government bullying the states with the threat of withheld funding, when it comes time to argue against the federal government doing the very same thing in Rumsfeld v. FAIR (the Solomon Amendment case)? Libertarians should be aghast at this part of the Cornyn bill — it is nothing more than yet another potential abuse of federal power and yet another betrayal of fiscal federalism, which is a far greater threat to libertarian ideals than even the Kelo travesty. (Fighting all federal subsidization of state and local government programs, as a blanket policy, is of course a fundamental libertarian principle. But cherry-picking which funding threats to rally behind and which to let quietly slide by will only lead to claims of inconsistency and hypocrisy later.) When it comes to bad policies, “the enemy of my enemy is my friend” is a dead end that will only result in libertarians losing on both fronts. Intellectual consistency is vital, and the funding-threat prong of the Cornyn bill is not consistent with libertarianism. Be careful what anti-Kelo legislation you wish for — you might get it. The far better way to fight Kelo is at the state level: limit, by state constitutional amendment if necessary, the ability of municipalities to authorize private-for-private takings. The federal Constitution always represents only the floor on individual rights; state laws and constitutions can always afford more rights. And, since the private-for-private outrages are happening at the state and local level reather than at the federal level, clearly it makes more sense to fight the battles there, in the state houses
Not sure yet where I come down on this one, and I’m probably not alone, so I offer the above perspectives just as food for thought. (Hat tip to Volokh for getting the ball rolling on this one.)