The Volokh Conspiracy - House Agriculture Committee Passes Eminent Domain Reform Bill:

The House Agriculture Committee recently passed an eminent domain reform bill that would withhold federal "economic development" funds from state and local governments that condemn property for transfer to other private parties (hat tip Jacob Sullum). The text of the bill, known as the Strengthening the Ownership of Private Property Act, is available here. As Jacob Sullum correctly points out, this Act is much stronger than the Bond Amendment, the previous eminent domain reform bill enacted by Congress in 2005 (for a detailed analysis of the largely ineffectual Bond Amendment, see my paper on Post-Kelo eminent domain reform, pp. 35-36). The new bill only allows exceptions for takings that transfer property for 1) public utilities, 2) roads and common carriers, 3) aqueducts and pipelines, 4) privately operated prisons and hospitals, and 5) "any use during and in relation to a national emergency or national disaster declared by the President under other law." The last exception is potentially troublesome given the abuses of eminent domain that took place in the aftermath of Hurricane Katrina. See also here.

Still, if enacted, this bill would definitely provide property owners with greater protection against federally subsidized takings than current law. However, there are two problems. First, it is far from clear whether this law can pass the full House - and especially the Senate - unmodified. In November 2005, the House overwhelmingly approved the Private Property Rights Protection Act, a similar (though probably somewhat weaker) reform. However, the PRPA died in the Senate, thanks in part to the behind-the-scenes maneuvering of Senate Judiciary Committee Chairman Arlen Specter. It is difficult to say whether the new Democratic majority in the Senate will be more supportive of this kind of legislation than the Republicans were. But I'm not holding my breath on it.

The second potential problem is that the new legislation may actually only withhold relatively small amounts of funds from offending jurisdictions. This was a major weakness of the Property Rights Protection Act (see my paper, pp. 35-36). Unlike the PRPA, this year's legislation specifically enumerates the types of federal funds that would be withheld if the act passes. I have not yet had time for a detailed analysis of the range of funds that would be covered. But it seems to be similar to the likely scope of the PRPA, which I estimated to cover only 1.8% of all federal funds available to state and local governments (ibid., pg. 35). Moreover, it seems that many of the funds covered by the new act are agricultural subsidies that would be important only in rural areas where private to private condemnations are in any case rare.

That said, there is no question that, if it passes, the new law would have a significant impact in at least some jurisdictions, particularly those urban areas that depend heavily on federal funds. The interesting question is whether the full House and the Senate will support it. Unfortunately, the experience of the PRPA does not give me great cause for optimism.

	[Ilya Somin, May 20, 2007 at 8:21pm] Trackbacks House Agriculture Committee Passes Eminent Domain Reform Bill: The House Agriculture Committee recently passed an eminent domain reform bill that would withhold federal "economic development" funds from state and local governments that condemn property for transfer to other private parties (hat tip Jacob Sullum). The text of the bill, known as the Strengthening the Ownership of Private Property Act, is available here. As Jacob Sullum correctly points out, this Act is much stronger than the Bond Amendment, the previous eminent domain reform bill enacted by Congress in 2005 (for a detailed analysis of the largely ineffectual Bond Amendment, see my paper on Post-Kelo eminent domain reform, pp. 35-36). The new bill only allows exceptions for takings that transfer property for 1) public utilities, 2) roads and common carriers, 3) aqueducts and pipelines, 4) privately operated prisons and hospitals, and 5) "any use during and in relation to a national emergency or national disaster declared by the President under other law." The last exception is potentially troublesome given the abuses of eminent domain that took place in the aftermath of Hurricane Katrina. See also here. Still, if enacted, this bill would definitely provide property owners with greater protection against federally subsidized takings than current law. However, there are two problems. First, it is far from clear whether this law can pass the full House - and especially the Senate - unmodified. In November 2005, the House overwhelmingly approved the Private Property Rights Protection Act, a similar (though probably somewhat weaker) reform. However, the PRPA died in the Senate, thanks in part to the behind-the-scenes maneuvering of Senate Judiciary Committee Chairman Arlen Specter. It is difficult to say whether the new Democratic majority in the Senate will be more supportive of this kind of legislation than the Republicans were. But I'm not holding my breath on it. The second potential problem is that the new legislation may actually only withhold relatively small amounts of funds from offending jurisdictions. This was a major weakness of the Property Rights Protection Act (see my paper, pp. 35-36). Unlike the PRPA, this year's legislation specifically enumerates the types of federal funds that would be withheld if the act passes. I have not yet had time for a detailed analysis of the range of funds that would be covered. But it seems to be similar to the likely scope of the PRPA, which I estimated to cover only 1.8% of all federal funds available to state and local governments (ibid., pg. 35). Moreover, it seems that many of the funds covered by the new act are agricultural subsidies that would be important only in rural areas where private to private condemnations are in any case rare. That said, there is no question that, if it passes, the new law would have a significant impact in at least some jurisdictions, particularly those urban areas that depend heavily on federal funds. The interesting question is whether the full House and the Senate will support it. Unfortunately, the experience of the PRPA does not give me great cause for optimism.