Monday, June 27, 2005

Cornyn Legislation

Just today, Senator Cornyn introduced federal legislation -- the "Protection of Homes, Small Businesses, and Private Property Act of 2005" -- in response to the Supreme Court's Kelo decision from last week. The text of the bill isn't available on Congress's website just yet. [UPDATE: It's available on Senator Cornyn's website.] Here's the proposed text:
(a) IN GENERAL -- The power of eminent domain shall be available only for public use.

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

(c) APPLICATION -- 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.
That last clause makes the bill less effective (many local projects won't be federally funded), but is probably necessary to assure the bill's constitutionality (the Supreme Court is very lenient about conditions attached to congressional spending, whereas if Congress tried to interpret the 5th Amendment so as to apply to all situations, the Supreme Court would crack down in short order. Protecting the Court's own turf is Very Important.)

Actually, the last clause could probably be worded a little more broadly. What does it mean to have an "exercise[] of eminent domain power" that takes place "through the use of Federal funds"? Does that mean that it applies only if the federal funds are used to pay for the eminent domain? That seems to be implied by the word "through."

Or is the bill supposed to apply to any use of eminent domain power by a local development plan or agency that receives federal funds in any other aspect of its operations? If the latter, the bill should probably say, "all exercises of eminent domain power by any State and local government agency or entity that receives federal funds, or pursuant to any plan that receives federal funds.


Anonymous Anonymous said...

It seems like Congress should be able to take advantage of the boundless reach of the Commerce Clause to strike a blow for property rights.

4:57 PM  
Blogger Brett said...

Shouldn't the precident of RLUIPA indicate that they could make a "finding" that eminent domain for the purposes of transfering property from one private sector entity to another excessively burdens private property rights?

6:27 PM  
Blogger Brett said...

If there weren't a 14th amendment, it would be a attack on federalism. But few federalists would assert that states' rights should trump constitutional amemdments that were INTENDED to impact them.

4:40 AM  

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