Sen. Cornyn (R-TX) Proposes Limits on Eminent Domain:

Sen. Cornyn is introducing a federal bill (S. 1313, "The Protection of Homes, Small Businesses, and Private Property Act of 2005") that would bar "economic development" takings:

(a) . . . The power of eminent domain shall be available only for public use.

(b) . . . In this Act, the term "public use" shall not be construed to include economic development.

(c) . . . 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.

As I read this, the bill would only apply when states and local governments use federal funds to pay for the taken property (since that's the only time the "eminent domain power" is "exercise[d]" "through the use of Federal funds"); it wouldn't matter whether they use federal funds for the rest of the development project. I suspect that this means the effect on state and local takings will be modest, though perhaps the symbolic impact might be more substantial.

Here's Sen. Cornyn's floor statement and his press release.

What an utterly worthless bill this is. It does absolutely nothing to define what a "public use" is, other than to say "it isn't economic development!"

The Kelo decision struck me as a pretty clear recognition of the fact that land use and zoning have traditionally been state issues, and that it would be inappropriate for the Supreme Court to proclaim a one-size-fits-all definition of "public use" that could be applied to the multiplicity of possible situations in all the various states. By introducing a bill with such a weak definition of "public use," the author of this bill essentially admits the difficulty of resolving this issue on the federal level.
6.27.2005 5:44pm
Sha_kri14 (mail):
I am really suprised that you are not more repulsed by the Kelo ruling. The idea that the government can take a person's property and give it to another just because the latter can use it better goes against everything the Bill of Rights represents (at least as I perceive it). Especially with a subjective standard like that.

Not only that, but the corruption that Kelo will allow will have the potential to do away with property rights. All a developer or someone else has to do is throw a few bucks to a few local officials and he/she can buy any property he/she wants. And don't think, "oh well, stuff like that wont happen, etc.") There are politicans at the Federal level who are corrupt (ahem, not to mention the International level i.e. UN) and they are held to a much higher standard of character and intellectual ability than local officials. This court is just out of touch with things IMHO.
6.27.2005 5:49pm
Jody (mail) (www):
Under Raich, wouldn't any economic development constitute "interstate commerce"? So couldn't Cornyn's act be readily extended to the states just by removing clause (c)?
6.27.2005 6:00pm
Todd Kincannon (mail):
I don't understand why Sen. Cornyn doesn't take advantage of the Raich-broadened Commerce Clause powers and expand his bill to reach most all state takings.

The exercise of eminent domain by the states certainly has at least a tiny little effect on interstate commerce, which is apparently enough to satisfy the Supreme Court.
6.27.2005 6:03pm
ardbeg78 (mail):
Actually, "through the use of federal funds" is exceedingly broad. In the Title IX context, the Court has ruled (the citation escapes me) that a single student receiving federal grant money or a federally guaranteed student loan subjects an entire university to the Title IX reporting requriements. If the Court (or lower federal courts following this precedent) is consistent, it should broadly apply this to a taking for the purposes of any project that involves federal funds or loans guaranteed by the federal government. I leave aside the wisdom (or correctness) of the precedent, but the courts ought to be consistent.
6.27.2005 6:07pm
Greedy Clerk (mail):
I am all for this legislation for two reasons:

1. I think Kelo was wrong (as was the Hawaii case which preceded it); and

2. I would love to see W at the signing ceremony try to explain why it was OK for him to profit incredibly off the exercise of eminent domain on private homes to build the Texas Rangers Stadium but now that he made his millions no one else should be able to.

Because of point 2, however, I don't think the WH would let this legislation get through the Senate -- the memo would get to Frist to lay off it.
6.27.2005 6:41pm
cfw (mail):
I have in mind the Dodger Stadium and Main Place shopping centers in LA and Orange Counties - both pretty impressive and successful developments that clearly involved taking property with compensation for economic purposes.

Litigation as to property value goes to a jury and the lawyers for property owners in CA routinely make considerable sums of money. Litigation expenses and lawyers fees get paid by the condemning agency.

Most rational property owners, in my experience (related to Main Place), have been quite pleased with the process - they argue about making the agency take more property.

I'm not sure how one convincingly distinguishes taking homes for the 105 freeway vs. Main Place. Both are for economic activity and in either case, the home ends up gone.

Keep in mind the possibility of extortion or over-reaching by "hold out" property owners. Are we willing to have that whenever someone has a development that is at least partly tied to "economic development"? When is a wise public project not partly focused on economic development?

I think the USSCT has it right, from a practical perspective, though its ruling looks offensive.
6.27.2005 6:46pm
DJ (mail):
I think it's interesting that Cornyn and commentors here are being careful to find a constitutional jurisdictional hook on which to place Kelo-related legislation. The spending clause approach, I would submit, seems the most narrow for reasons stated above. But I'm wondering why there's no mention of the most obvious hook--namely, section 5 of the Fourteenth Amendment? To be sure, under City of Boerne, Congress can't use its section 5 remedial power to now deem public benefit takings unconstitutional. But it could provide a direct recourse to federal courts to determine ex ante whether the taking is improper for the reasons Kennedy spelled out in his concurrence. And why not give plaintiffs in such cases liberal discovery rights? Or make the developer pay the costs of the action? Or perhaps create an expensive federal regulatory requirement that mandates that a federal agebncy such as HUD must investigate all "private" takings to insure there's no self dealing? There's a host of ways to put teeth into Kennedy's concerns--and without imposing a per se proscription (like Cornyn's bill) that probably doesn't accomplish what it's intended to.
6.27.2005 6:59pm
Dilan Esper (mail) (www):
It seems to me that by saying that "economic development" can never be a public use, Cornyn's bill in this aspect goes even farther than Kelo's lawyers would have had the Supreme Court go. After all, even if something is government owned, it could be characterized as "economic development" and thus not a public use. (Suppose, for instance, a city took property to construct a city-owned shopping mall.)

I believe Kelo's position in the lawsuit was that it wasn't a public use if the government simply took the property to give it to a private developer for economic development. Cornyn's bill would not limit itself to this scenario.
6.27.2005 7:19pm
Rob Read (mail):
Why not see things from the other direction?

The problem is that the state reserves the right to seize property and thus open up opportunity to corruption.

For what I'm going to suggest you're going to think I'm mad at first but I think the logic is sound.

Why not let residents put a price on their property, the price that they define for property is what they pay a %age in tax for. However ANYONE can purchase that complete property for that price, subject to an arbitrary delay (say 18 months).

This would eradicate a special privilege for the state.
Provide a system for keeping property tax accurate.
Allow development without corruption.
Provide more liquidity to the housing market.
6.27.2005 7:22pm
Rob Read (mail):
One last thing, it would allow taxes to fall if the state failed to defend the value of housing!
i.e. the State has an incentive to keep an area nice.
6.27.2005 7:23pm
Douglas (mail):
Am I the only one who sees this as a gesture by Cornyn to soften up a possible nomination to the Supreme Court? There is no doubt that the public opinion is against the Kelo ruling. If Bush nominates Cornyn, he could point to this bill as evidence that he would have voted with the dissent in the Kelo opinion. In addition to strengthening his conservative credentials, this would also give him good will with the general public and good talking points for the confirmation hearings.
6.27.2005 7:28pm
A number of people who dislike the Kelo ruling seem to be lining up to compliment this statute, but none of them has dealt with the fact that it doesn't actually say anything. It seems to me they are reading the statute to mean something they want it to mean, but seriously, I don't see it could have any teeth whatsoever in its present form.
6.27.2005 10:44pm
anony-mouse (mail):
I worry that the symbolic impact of this bill may go the opposite direction from what Eugene Volokh seems to imply -- to wit, the average layman mildly inflamed by Kelo will hear of the bill, assume the problem has been taken care of, and then wake up one morning to the sights and sounds of a bulldozer and a blighted property notice, only then realizing that emminent domain reform needed to be handled at the state level to be fully substantive.
6.27.2005 11:14pm
Texican (mail):
Not to pick nits here, but I don't the The Ballpark in Arlington (Texas Rangers home) used the eminant domain to obtin the land as it was built adjacent to the old Arlington Stadium parking lot. I could be wrong, but that's the way I rememeber it.
6.27.2005 11:41pm
w. lyle stamps (mail) (www):
What I want to know is why Cornyn hasn't proposed a constitutional amendment? If the House can pass a resolution to ban flag burning, surely they can do something about protecting private property.
6.28.2005 11:56am
Rangers: Only AL team never to have won the pennant.:
for Texican, from that noted legal commentary source, ESPN:

"Candidate Bush got the taxpayers of Arlington to spend $135 million toward building his team's stadium, yet the Republican party espouses keeping government out of the way of private enterprise. The Ballpark stands as a monument to what critics call corporate welfare, yet his party advocates reducing welfare rolls. The entire complex stands on land that includes 13 acres taken by eminent domain, yet when campaigning in rural Texas Bush told voters he would keep the government from seizing their private land for public use."
6.28.2005 1:43pm
I think that Steve and Anony-mouse are correct. This bill only acknowledges the problem without providing a solution since I don't think that developer-funder takeovers come under its authority. CFW points out that there are some individuals who will "exhort" a developer by holding out. So what? It's their home.
6.28.2005 4:23pm