Last week's Supreme Court decision in Kelo v. City of New London created new eminent domain powers to allow local governments to take private property from its lawful owner and give it to a private developer who promises to generate greater tax revenue with the land.
The new powers of eminent domain -- long reserved for taking property only for public use such as highways -- could be used to build developments such as privately owned strip malls or motels.
I guess we have the actual case and the myth of the case. Congressional rhetoric predictably uses the mythic version. Tom DeLay spouts:
"The Supreme Court voted last week to undo private property rights and to empower governments to kick people out of their homes and give them to someone else because they feel like it," said House Majority Leader Tom DeLay, Texas Republican. "No court that denies property rights will long respect and recognize other basic human rights.
Could people try to remember what the Court actually did in the Kelo case? It rejected a bright-line rule that would have said economic development never counts as part of the public use for which property can be taken. Horrible exercises of eminent domain of the sort DeLay refers to here were left to be decided in particular cases when they actually arise. Justice Stevens wrote:
It is ... argued that without a bright-line rule nothing would stop a city from transferring citizen A’s property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public useIf Congress is so outraged about the abuse of power, why isn't it outraged by its own behavior when it wields the great legislative power of the federal government without bothering even to try to accurately describe the problem it means to address?
UPDATE: Here's the WaPo report on the bill the House passed:
The House measure, which passed 231 to 189, would deny federal funds to any city or state project that used eminent domain to force people to sell their property to make way for a profit-making project such as a hotel or mall....No, no hypocrisy here is there? Did they pause anywhere in all of this and ask whether they had the power to do this? How is this not a flagrant violation of Congress's spending power? Why not condition all federal spending on state concession of whatever autonomy the states happen to have left?!
The measure, an amendment to an appropriations bill, would apply to funds administered by the departments of Transportation, Treasury, and Housing and Urban Development. House Majority Leader Tom DeLay (R-Tex.) and Majority Whip Roy Blunt (R-Mo.) said they will push for a more inclusive measure that would apply to all federal funds.
A fact sheet said under the bill the locality or state would "lose any federal funds that would contribute in any way to the project the property would be taken for."