Senate should pass House bill that kills horrendous Kelo decision

One of the most outrageous and wrong-headed Supreme Court decisions of recent years was 2005’s Kelo v. City of New London. The phrase “the Kelo decision” has become shorthand for government overreach in general, and certainly for encroachment upon private property rights in particular.

The good news is that House last week passed a bipartisan bill (Page 10) to push back against such encroachment. Illustrating the contempt in which Kelo is widely held, the bill was co-sponsored by staunch conservative Jim Sensenbrenner (R-Wisc.) and Maxine Waters (D-Calif.), one of the most outspokenly liberal Democrats in the House.

Waters said of the Kelo decision, echoing the dissenting opinion of Supreme Court Justice Sandra Day O’Connor: “The founders cannot have intended this perverse result — using economic development as a justification for using its power of eminent domain at the expense of the poor and politically weak.” This is one time Waters is right.

In the Kelo case, the city of New London, Conn., decided to use eminent domain proceedings to take the last few pieces of property needed for a project that included a hotel, office and retail space that would enhance Pfizer Inc.’s nearby corporate offices. The other properties required had been sold voluntarily to the city by their owners, but Susette Kelo and several other homeowners declined to sell their homes.

The city seized her property on the grounds that the community benefits from its economic development plan — especially the future higher tax collections — satisfying the “takings clause” of the Fifth Amendment. These considerations outweighed Kelo’s individual property rights, according to the court’s thinking, even though it meant taking property from one private owner and giving it to another. This is a far cry from the intended purpose of eminent domain, which was to allow government to acquire properties for true public uses like a road or a school. The Kelo decision opened the door to even more eminent domain mischief. Eminent domain was already a useful tool for the politically friendly developer, who is only too happy to enlist the force of government to aggregate properties that are difficult to acquire one by one.

The Supreme Court ruled 5-4 in favor of the city, but the minority (Justices O’Connor, Scalia, and Thomas, along with Chief Justice William Rehnquist) wrote extremely heated dissenting opinions. Thomas warned: “Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the clause’s original meaning, and I would reconsider them.”

As it turned out, the City of New London’s great economic plan never came to fruition and the properties it seized stand 13 years later as a huge vacant lot, after the city and state governments blew $78 million bulldozing the properties.

Rep. Sensenbrenner’s bill, the Private Property Rights Protection Act, penalizes eminent domain takings for “economic development” by making state governments “ineligible to receive federal economic development funds for two fiscal years following a judicial determination that the law has been violated” by “using its eminent domain power to transfer private property to other private parties for economic development,” as the congressman explained in his remarks on the House floor.

This isn’t Sensenbrenner’s first time at bat with the Private Property Rights Protection Act. He got it through the House on a 376-to-38 vote in 2005, but it died in the Senate. Will it meet the same fate again? The same Democratic Party still runs the Senate, and its members weren’t much impressed by House “bipartisanship” last time.

It should be clearer to Americans than ever that none of their rights are “inalienable” any more. You keep the rights you are prepared to defend.

State and local governments contain no shortage of bureaucrats who think they can put private property to better economic use than the owners, even when some of those plans end with nothing but expensive vacant lots.

We urge Senate Majority Leader Harry Reid (D-Nev.) to bring the issue up for a vote in the Senate and protect this important individual liberty by quickly passing the Private Property Rights Protection Act, thus ending government overreach on eminent domain and finally burying the horrendous Kelo decision in its own vacant lot.