December 7, 2005

Kelo Update: “the backlash so far has accomplished little”

Filed under: Economy,Taxes & Government — Tom @ 12:01 am

….. and the eminent-domain tyrants have been very, very busy.

Timothy Sandefur at Positive Liberty (HT Todd Zywicki at Volokh) has an excellent post about the progress of legislation at both the state and federal level meant to neutralize the effects of the Supreme Court’s Kelo ruling this past summer.

Sandefur’s post is excellent; the results aren’t. His finding: “….. the backlash so far has accomplished little.”

In a nutshell, four states (AL, TX, DE, and OH) have passed laws that appear to have loopholes significant enough to make them largely ineffective. Of the four, Texas’s appears to have at least a few teeth. Three proposals in California have been defeated in the legislature. Pennsylvania has a law going through the legislative meat grinder that in its current form is very strong (“a well-crafted, carefully thought-out measure which provides serious protection for property owners, while allowing government to eliminate actual cases of dangerous or misused property”).

At the federal level, HR 4128 (mentioned by Jean Schmidt at her town hall meeting this past Saturday, as reported by S.O.B. Alliance member Porkopolis) essentially prohibits the use of federal funds on projects that use eminent domain to take private land for purposes other than those originally envisioned by our Founding Fathers. HR 4128 was passed by a huge majority in the House. In the Senate there are four bills (S1895, S 1883, S1704, and S1313), sitting in committee that appear be about eminent domain; none of them list HR 4128 as a “Related House Bill” (no links are provided because they move so frequently). Given what I see, there is little chance of any kind of bill reaching the President’s desk by the end of the year.

Sandefur observes:

Considering the enormous influence that federal funding has on local governments, there is reason to believe that if HR 4128 is passed by the Senate and signed by the President, it will greatly limit the number of Kelo-style redevelopment takings.

That’s fine as far as it goes, but the federal legislation would be an improvement based on money, not on re-establishing an important principle, and would otherwise let Kelo, and government’s ability to take private property for what should be prohibited purposes, stand.

Little more than three months ago, I made this observation (near end of post):

….. human nature being what it is, the citizen involvement and oversight, while it has shown good staying power, won’t last, and the definition of “reasonable and necessary” will eventually start pushing the limits now allowed by the Supremes.

I’m not happy with the idea that the “staying power” is already wearing down. If the relatively modest state legislation thus far is any indication, the initial outrage appears to have been largely neutralized.

Additionally, Kelo-style taking efforts appear to be ramping up. One of mammoth proportions is in the works in Florida. The Castle Coalition has a list of “Current Controversies” that has over 130 projects in 25 states and the District of Columbia where previously unconstitutional eminent-domain takings are being strongly considered or pursued. Maybe we need a new term: “eminent domainia.”

The way events are proceeding should not be that surprising, because by relying on the states to be the primary negators of Kelo, they are being asked to act against what they in most cases see as their own economic self-interest. States and cities probably feel that they will be at an economic disadvantage against other states if they give up the ability to abuse eminent domain and other states and cities don’t. This is why the current federal legislation, even if it does make it into law, and though it’s a very good start, won’t be enough, because projects not involving federal funds are not affected. That’s also why Supreme Court judicial selections and confirmations matter, because it may be that nothing short of a Kelo reversal will turn away the eminent-domain tyrants.

Selected Previous Posts:



  1. Eminent Domain update

    This post at Bizzy Blog highlights some of the national and individual state movements towards protecting individuals’ property rights, in response to the SCOTUS’ Kelo ruling.Unfortunately, the author comes to this conclusion:I’m not hap…

    Trackback by Central VA real estate news, trends and opinions — December 7, 2005 @ 6:16 am

  2. Public Choice and the Waning Anti-Kelo Backlash:

    Tom Blumer at BizzyBlog is not surprised that the Anti-Kelo backlash is already running out …

    Trackback by The Volokh Conspiracy — December 7, 2005 @ 10:48 am

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