Bipartisan Support for Eminent Domain Reform

WASHINGTON – Some Republican and Democratic lawmakers called for national reform of eminent domain policy on Tuesday, the same day the Senate Judiciary Committee (search) heard witnesses offer their appraisals of the Supreme Court's recent decision expanding the ability of government to seize private land.

"The taking of private property for private use, in my estimation, is unconstitutional. It's un-American, and it's not to be tolerated," said Rep. Maxine Waters (search), D-Calif., in a press conference Tuesday afternoon. "This is not a partisan issue."

Waters and Sen. John Cornyn (search ), R-Texas, said they are working together to draft new legislation to limit the powers of government to take private property. The two had already each introduced separate bills in their respective chambers just weeks after the Supreme Court ruled 5-4 in June in favor of town officials who sought the authority to seize private land and turn it into a commercial office and hotel.

Kelo et. al. v. the City of New London is the first ruling in which eminent domain has been extended to allow governments to take private property for private development rather than for public use.

At the hearing, witnesses dueled over whether local power to take private property hurts homeowners or helps improve communities.

"This battle against eminent domain abuse may have started as a way for me to save my little pink cottage, but it has rightfully grown into something much larger — the fight to restore the American dream and the sacredness and security of each one of our homes," said Susette Kelo, whose experience launched the case.

"I sincerely hope that Congress will do what judges and local legislators so far have refused to do for me and for thousands of people like me across the nation: protect our homes," Kelo told Senate lawmakers.

Kelo and others, including the pastor of a church that was lost in a separate development battle, an NAACP official and a law professor, all criticized the ruling.

Pastor Fred Jenkins of North Hempstead, N.Y., said his congregation lost its church in an eminent domain battle due to a plan that existed before the congregation owned the land.

"This country is full of people like my parishioners, who work hard and save up to buy something to call home. I ask you to please stop funding local governments like North Hempstead that use federal dollars to take away homes, businesses and churches for private gain," Jenkins said.

Not everyone opposes the court's ruling, however.

"The Kelo decision affirmed that eminent domain, a power derived from state law, is one best governed by the states and their political subdivisions," said Eddie Perez, the mayor of Hartford, Conn. He was speaking on behalf of the National League of Cities.

Perez said that without eminent domain powers, New Orleans and other areas affected by Hurricane Katrina would face a difficult time recovering.

But Hilary O. Shelton (search ), director of the NAACP's Washington bureau, said eminent domain has frequently been used to force minorities out of neighborhoods set for city-planned renewal.

"The history of eminent domain is rife with abuse specifically targeting minority neighborhoods," Shelton said. "By allowing pure economic development motives to constitute public use for eminent domain purposes, state and local governments will now infringe on their property rights of those with less economic and political power with more regularity."

Asked whether the justification of "urban renewal" is actually "black removal," Perez acknowledged that in the 1960s, federally sponsored programs ended up forcing blacks out, but in his home city, recent projects didn't cause "wholesale displacement" of minorities.

'Unintended Consequences' of Legislative Assistance

In response to the June ruling, the House quickly passed a bill that would prevent federal transportation funds from being used to make improvements on lands seized for private development. The Senate has not yet addressed that bill.

In addition, at least 25 states are considering changes to eminent domain laws to prevent the taking of land for private development. In its ruling, the court noted that states can respond with their own laws if they don't agree with the court's decision.

Thomas Merrill (search), a Columbia Law School professor, told the committee members that the ruling appears to be helping the nation figure out how eminent domain should work. Merrill said the court's decision has pushed state legislatures to be clear in their rules on when government has the power to take private property.

"I think the political process is responding" to the ruling, Merrill said.

But Sen. Jon Kyl, R-Ariz., citing Justice Sandra Day O'Connor's argument in her dissent, said it's not the states' responsibility to fix the court's shortcomings.

"What she's saying is it's the Supreme Court's duty to enforce constitutional rights. We shouldn't be passing off the buck to state legislatures to do whatever they think is right," Kyl said.

"This is a matter that requires congressional analysis," agreed Sen. Arlen Specter, R-Pa., the committee chairman who opened the hearing by saying he wasn't necessarily for or against the ruling. He said the purpose of the meeting was to determine whether the Kelo decision was a "wise, appropriate taking of private property."

"Wise" and "appropriate" were not descriptions likely to be used by Sen. Patrick Leahy, D-Vt., the committee's ranking minority, who told Kelo that he was among those who thought the decision made things worse for property owners.

"I'm probably one of the millions of Americans who were distressed when we learned your story," Leahy said. "I want to work with others of this committee, fashion some solution, some better, fairer more sensible ways for local government to use, and not misuse, the significant power" of eminent domain.

Leahy said that if legislation is chosen as the best way to go, "we should move cautiously so we don't have unintended consequences."

A number of legislative initiatives are underway already, including those bills introduced separately by Cornyn and Waters. Cornyn said his bill, The Protection of Homes, Home Businesses and Private Property Act of 2005, covers only federal eminent domain powers. He said he hoped it would be a template for future broader eminent domain issues.

Waters said legislation she introduced would deny Community Development Block Grant funds to states and localities that use eminent domain to transfer private property to another private property owner for commercial or economic development.

About a half-dozen other bills have also been introduced in the House and Senate. George Mason University Law School professor Steven Eagle argued that any bill that arises should "limit condemnation [of property] to traditional public uses," such as roads or schools. Eagle added that landowners should have greater power to contest condemnations.

Cornyn said with Hurricane Katrina pushing up the need to act, the issue promises to continue to be one that will receive attention.

"There's no reason why we can't move forward with this on an expedited basis," Cornyn said, adding that the rebuilding of New Orleans "presents the issue very squarely."