When the U.S. Supreme Court rules, more often than not, that settles the matter.
But not in the case of Kelo v. City of New London, where the court sparked a revolt that quickly flared across more than three dozen states. The decision, handed down in 2005, told cities across the country to feel free to take away homes and businesses from property owners and give them to wealthy developers, as long as cities promise they think new developments might generate more tax dollars or jobs, with an emphasis on “think” and “might.”
There is no appeal of Supreme Court decisions and changing the Constitution is hard, but that didn’t stop states from setting more protective standards for their own property owners. Since Kelo, 44 states have enacted laws restricting the power of eminent domain to varying degrees, and more protections are being added. Virginia’s legislature is close to passing expanded protections.
Despite the differences in the reform efforts, the message remains the same: You got it wrong, Supreme Court. Now the nationwide revolt has come to Congress, finally allowing the federal government to join the effort to stop eminent domain abuse.
The power of eminent domain is supposed to be for “public use” so government can build things like roads and schools. Local governments essentially can force homeowners and business owners to sell their land, often at cut-rate prices, so essential services can be built. But starting with the wildly unsuccessful urban renewal efforts of the 1940s and 1950s, “public use” has been stretched to mean anything that possibly could benefit the public, not limited to what the public might actually share in using - shopping malls, fancy housing developments and office towers that could pay those local governments more in property taxes.
It has been demonstrated time and again that eminent domain is routinely used to wipe out black, Hispanic and poorer communities, with less political capital and influence, in favor of developers’ grand plans.
It also has been demonstrated that restrictions on eminent domain in no way inhibit economic growth, as the beneficiaries of eminent domain abuse would like you to believe. Development will continue to happen every day, as it always has, through private negotiation - not government force.
In fact, prohibitions on eminent domain abuse instill confidence in investments, leading to even stronger economic growth.
Groups across the philosophical spectrum have recognized the need to limit this abuse of power to protect those who are defenseless against the seemingly unstoppable alliance of powerful, deep-pocketed developers and their politician friends. The diverse coalition has included the National Association for the Advancement of Colored People, the League of United Latin American Citizens, the National Federation of Independent Business and the Farm Bureau. It’s safe to say that the coalition also includes more than 80 percent of Americans, as demonstrated poll after poll taken after Kelo.
Despite the evidence that Americans are united against the misuse of eminent domain, Congress has yet to to take even a modest step. A bipartisan bill, H.R. 1433, making its way through the House would strip a city of federal economic development funding for two years if the city takes private property to give to someone else for their private use. Cities that want to keep their funding will have to be more circumspect in using eminent domain.
This bill undoubtedly will pass the House as it did in 2005, and likely will get stalled in the Senate Judiciary Committee, headed by Sen. Patrick J. Leahy, Vermont Democrat, where it has gone to die in years past.
It is tragic because this is exactly the kind of centrist reform - uniting minority advocates and small-business interests - where Republicans and Democrats should be able to work together.
Christina Walsh is director of activism and coalitions for the Institute for Justice, which argued the Kelo case before the U.S. Supreme Court.