[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.
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