Legislators Move to Blunt Eminent Domain Ruling: The Washington (DC) Post, 6/30/05

By Mike Allen and Charles Babington

Key leaders of both parties in both chambers of Congress vowed today to use the power of the purse to negate this week's Supreme Court ruling allowing local and state governments to use eminent domain to take private property for economic development purposes.

Bills introduced in the House and Senate would yank federal funds from any city or state project that forced people to sell their property to make way for a project like a hotel or strip mall.

The 5-to-4 Supreme Court decision on Monday, the last day of the term, has sparked an immediate and visceral backlash among conservatives. The response on Capitol Hill was unusual for its speed and bipartisan support, and for the biting language the lawmakers used to criticize the high court.

House Majority Leader Tom DeLay (R-Tex.) said the planned intervention by Congress is part of a broad effort to "assert the responsibility and the authority of the Congress to be a check on the judiciary.

"Times have changed, particularly in the last two to three years," DeLay said during a rare appearance in the studio of the House Radio-TV Gallery. "This Congress is not going to just sit by — idly sit by — and let an unaccountable judiciary make these kinds of decisions without taking our responsibility and our duty given to us by the Constitution to be a check on the judiciary. And this is an example of doing that."

The ruling permits the "taking" of a home or neighborhood, with compensation, for such purposes as the construction of a shopping center. Activists said it has struck such a nerve that it will now be a key issue in convincing conservatives and libertarians to join the confirmation battle when one of the justices steps down.

House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) said he will introduce a Private Property Rights Protection Act that will prohibit any state or municipality from using federal funds for any project in which economic development is used as a justification for exercising eminent domain.

"This decision, in my opinion, has the potential of becoming the Dred Scott decision of the 21st century," Sensenbrenner said. He was referring to the 1857 ruling that affirmed slaves as property without the rights of citizens, and was overturned when the 14th amendment was ratified in 1868.

A committee description said the locality or state would "lose any federal funds that would contribute in any way to the project the property would be taken for." The lead Democratic sponsor is Rep. John Conyers Jr. (Mich.), ranking minority member of the Judiciary Committee, and the committee said at least two other Democrats are co-sponsors.

Sen. John Cornyn (R-Tex.) is introducing a similar measure in the Senate, along with Sen. Bill Nelson (D-Fla.). Their measure — the Protection of Homes, Small Businesses and Private Property Act — relies on the authority of the legislature to regulate the use of federal funds, and declares the view of Congress that "the power of eminent domain should be exercised only 'for public use' " and not "to further private economic development."

Sensenbrenner said at the news conference that the federal government's money "will not be used to finance taking somebody's property from them to build a strip mall or a hotel or something simply because more tax revenue will come in as a result of an improvement." He said the decision, Kelo v. City of New London, "shows that the majority of the court had an utter disrespect for private property."

DeLay said as he left the news conference that he views the legislation as part of the review of congressional oversight of the judiciary that he requested after the death of Terri Schiavo, a Floridian who died March 31 after her feeding tube was removed despite congressional intervention to establish her rights in federal court.

"People are starting to understand what we've been talking about for the last two to three years," he said.

House Minority Leader Nancy Pelosi (D-Calif.) said at an earlier news conference that "very central in that Constitution is the separation of powers."

"When you withhold funds from enforcing a decision of the Supreme Court, you are in fact nullifying a decision of the Supreme Court," Pelosi said. "This is in violation of the respect of separation of powers in our Constitution — church and state as well. Sometimes the Republicans have a problem with that, as well."

In opposing a Republican amendment about the issue today, Rep. David Obey (Wis.), ranking Democrat on the House Appropriations Committee, said on the floor today that the decision was "nutty" but that the solution is legislation or a constitutional amendment, not punitive measures.

"The idea that this House, every time we don't like a court decision, should decide that we're not going to allow federal money to be used to enforce that court decision is as nutty as the original court decision in the first place," Obey said. "So I would hope that we would recognize that the Founding Fathers created the system of separation of powers. They created three independent branches of government for a purpose."

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