[Congressional Record Volume 151, Number 87 (Monday, June 27, 2005)]
[Senate]
[Pages S7429-S7430]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN:
  S. 1313. A bill to protect homes, small businesses, and other private 
property rights, by limiting the power of eminent domain; to the 
Committee on the Judiciary.
  Mr. CORNYN. Mr. President, I rise today to introduce new legislation, 
entitled the Protection of Homes, Small Businesses, and Private 
Property Act of 2005. I introduce this legislation in response to a 
controversial ruling of the United States Supreme Court issued just 
last Thursday.
  The protection of homes, small businesses, and other private property 
rights against government seizure and other unreasonable government 
interference is a fundamental principle and core commitment of our 
Nation's Founders. As Thomas Jefferson famously wrote on April 6, 1816, 
the protection of such rights is:

     the first principle of association, ``the guarantee to 
     everyone of a free exercise of his industry, and the fruits 
     acquired by it.''

  The Fifth Amendment of the United States Constitution specifically 
provides that ``private property'' shall not ``be taken for public use 
without just compensation.'' The Fifth Amendment thus provides an 
essential guarantee of liberty against the abuse of the power of 
eminent domain, by permitting government to seize private property only 
``for public use.''
  On June 23, 2005, the U.S. Supreme Court issued its controversial 5-4 
decision in Kelo v. City of New London. In that ruling, the Court 
acknowledged that ``it has long been accepted that the sovereign may 
not take the property of A for the sole purpose of transferring it to 
another private party B,''

[[Page S7430]]

and that under the Fifth Amendment, the power of eminent domain may be 
used only ``for public use.''
  Yet the Court nevertheless held, by a 5-4 vote, that government may 
seize the home, small business, or other private property of one owner, 
and transfer that same property to another private owner, simply by 
concluding that such a transfer would benefit the community through 
increased economic development.
  This is an alarming decision. As the Houston Chronicle editorialized 
this past weekend:

       It seems a bizarre anomaly. The government in China or 
     Russia might take private property to hand over to wealthy 
     developers to build shopping malls and office plazas, but it 
     wouldn't happen in the United States. Yet, that is the 
     practice the U.S. Supreme Court narrowly approved this week. 
     Local governments, the court ruled, may seize private homes 
     and businesses so that other private entities can develop the 
     land into enterprises that generate higher taxes.

  I ask unanimous consent that a copy of this editorial be printed in 
the Record at the close of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered. (See 
exhibit 1.)
  Mr. CORNYN. The Court's decision in Kelo is alarming because, as 
Justice O'Connor accurately noted in her dissenting opinion, joined by 
the Chief Justice and Justices Scalia and Thomas, the Court has:

     effectively . . . delete[d] the words ``for public use'' from 
     the Takings Clause of the Fifth Amendment and thereby 
     ``refus[ed] to enforce properly the Federal Constitution.''

  Under the Court's decision in Kelo, Justice O'Connor warns,

     [t]he specter of condemnation hangs over all property. 
     Nothing is to prevent the State from replacing any Motel 6 
     with a Ritz-Carlton, any home with a shopping mall, or any 
     farm with a factory.

  She further warns that, under Kelo,

     [a]ny property may now be taken for the benefit of another 
     private party, [and] the fallout from this decision will not 
     be random. The beneficiaries are likely to be those citizens 
     with disproportionate influence and power in the political 
     process, including large corporations and development firms. 
     As for the victims, the government now has license to 
     transfer property from those with fewer resources to those 
     with more. The Founders cannot have intended this perverse 
     result.
  Indeed, as an amicus brief filed by the National Association for the 
Advancement of Colored People, AARP, and other organizations noted:

     [a]bsent a true public use requirement, the takings power 
     will be employed more frequently. The takings that result 
     will disproportionately affect and harm the economically 
     disadvantaged and, in particular, racial and ethnic 
     minorities and the elderly.

  In a way, the Kelo decision at least vindicates supporters of the 
nomination of Justice Janice Rogers Brown to the U.S. Court of Appeals 
for the D.C. Circuit. That nomination attracted substantial controversy 
in some quarters, because of Justice Brown's personal passion for the 
protection of private property rights. The Kelo decision announced last 
Thursday demonstrates that her concerns about excessive government 
interference with property rights is well-founded and well within the 
mainstream of American jurisprudence.
  The Houston Chronicle has called upon lawmakers to take action, 
editorializing this past weekend that:

     lawmakers would do well to pass restrictions on this 
     distasteful form of eminent domain.

  I firmly agree.
  It is appropriate for Congress to take action, consistent with its 
limited powers under the Constitution, to restore the vital protections 
of the Fifth Amendment and to protect homes, small businesses, and 
other private property rights against unreasonable government use of 
the power of eminent domain.
  That is why I am introducing today the Protection of Homes, Small 
Businesses, and Private Property Act of 2005. The legislation would 
declare Congress's view that the power of eminent domain should be 
exercised only ``for public use,'' as guaranteed by the Fifth 
Amendment, and that this power to seize homes, small businesses, and 
other private property should be reserved only for true public uses. 
Most importantly, the power of eminent domain should not be used simply 
to further private economic development. The act would apply this 
standard to two areas of government action which are clearly within 
Congress's authority to regulate: (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.
  It would likewise be appropriate for states to take action to 
voluntarily limit their own power of eminent domain. As the Court in 
Kelo noted, ``nothing in our opinion precludes any State from placing 
further restrictions on its exercise of the takings power.''
  The protection of homes, small businesses, and other private property 
rights against government seizure and other unreasonable government 
interference is a fundamental principle and core commitment of our 
Nation's Founders. The Kelo decision was a disappointment, but I 
congratulate the attorneys at the Institute for Justice for their 
exceptional legal work and for their devotion to liberty. We must not 
give up, and I know that the talented lawyers at the Institute for 
Justice have no intention of giving up. In the aftermath of Kelo, we 
must take all necessary action to restore and strengthen the 
protections of the Fifth Amendment. I ask my colleagues to lend their 
support to this effort, by supporting the Protection of Homes, Small 
Businesses, and Private Property Act of 2005.

                                Exhibit 1

                             Stealing Home

       It seems a bizarre anomaly. The government in China or 
     Russia might take private property to hand over to wealthy 
     developers to build shopping malls and office plazas, but it 
     wouldn't happen in the United States. Yet, that is the 
     practice the U.S. Supreme Court narrowly approved this week. 
     Local governments, the court ruled, may seize private homes 
     and businesses so that other private entities can develop the 
     land into enterprises that generate higher taxes.
       The Supreme Court found, 5-4, that local elected officials 
     are not barred by the Constitution from condemning whole 
     neighborhoods and small businesses if, in their view, doing 
     so would lead to redevelopment that increases tax 
     collections.
       A majority on the court was convinced that the possibility 
     of improving the tax base for the benefit of the wider 
     community satisfies the Fifth Amendment's requirement that 
     private property can be taken by eminent domain only for a 
     public purpose.
       Justice Sandra Day O'Connor, who dissented, pinpointed the 
     problem with the majority's argument. It cedes 
     ``disproportionate influence and power'' to a community's 
     most powerful and well-connected residents.
       Public parks, schools and right of way for thoroughfares 
     traditionally have provided the sort of public purpose to 
     justify government's use of eminent domain. Grand 
     redevelopment schemes, especially when they are cooked up by 
     government officials, often lack a sound economic basis and 
     carry the potential of becoming boondoggles that hurt 
     taxpayers.
       Justice John Paul Stevens wrote for the majority that local 
     officials are qualified judges of whether an economic 
     development project will benefit the community. In this case, 
     city officials in New London, Conn., plan to tear down 
     private homes to make way for a riverfront hotel, offices and 
     a fitness club.
       ``The city has carefully formulated an economic development 
     that it believes will provide appreciable benefits to the 
     community, including--but by no means limited to--new jobs 
     and increased tax revenue,'' Stevens wrote.
       But is that universally true? Municipal and county 
     governing bodies frequently miscalculate or wildly 
     overestimate the benefits of tax abatements and other 
     incentives.
       Besides that, individual taxpayers don't necessarily 
     benefit from increased government revenues.
       Sometimes the increased revenue proves insufficient to 
     cover the cost of providing services to new development. 
     Sometimes increased revenues are wasted on things other than 
     essential services.
       Now that the high court has cleared the way for elected 
     officeholders to trump private property rights, abuse of 
     eminent domain becomes more likely, particularly in 
     neighborhoods populated by the least influential citizens. In 
     Texas, lawmakers would do well to pass restrictions on this 
     distasteful form of eminent domain.
                                 ______