Eminent Domain is Necessary to the Overall Function of Government: Hawaii Reporter, 11/21/05

Responding to Oped on Proposed Federal Usurpation of State and Local Eminent Domain Responsibility

By U.S. Congressman Ed Case

This addresses a recent article reprinted here with the incorrect and incendiary title: "Congressman Ed Case Votes to Take Private Property." The article, by Andrew Walden of Hawaii Free Press, disagreed with my opposition to H.R. 4128, the so-called "Private Property Rights Protection Act," which passed the U.S. House on November 3rd. This is one of those issues which, although portrayed by the author and other proponents and opponents as simple, is far more complex.

By way of background, this legislation was introduced in response to a recent U.S. Supreme Court case known as Kelo v. New London. In that case, the economically-distressed Connecticut city of New London implemented an integrated plan to redevelop ninety publicly and privately-owned acres to revitalize its blighted downtown area. While most private landowners negotiated voluntary sales to the city for fair compensation, as constitutionally required, the city exercised its power of eminent domain to acquire by eminent domain (condemnation), also for fair compensation, those properties whose owners did not want to sell. The city and owners disagreed whether the city's condemnation was for a "public use"; the Supreme Court, in a 5-4 decision, agreed with the city.

In the big picture, the power of our federal, state and local governments to acquire private properties for public uses on payment of just compensation, and the limitations on that power, have been recognized from the beginning of our country and are set forth in our federal and state constitutions. In most condemnation cases, although there may be disagreement over how much compensation is "fair" (market value), the question whether a taking is for a public use (such as land for a public highway) is not disputed because the land is to be used directly by the public.

In some cases, the question of public use may be much harder because the benefits to the public may be more indirect. For example, several decades ago Washington, D.C. redeveloped the Southwest portion of the city, then one of the worst slums in our country, partly through exercising eminent domain powers. This was much the same situation with New London, which believed that redevelopment generally would increase economic activity, reduce unemployment and crime, and revitalize the city for the common good.

The parameters of when a taking is for a public use and is therefore constitutional have been left to our courts and, since they are not set in stone and do involve takings, can be controversial. The general rule, which the Supreme Court repeated in Kelo, has been and is that indirect public use condemnation can be constitutional when it benefits the general public, but not when used to benefit "a particular class of identifiable individuals." Thus, for example, if a private company wanted to build a hotel and got government to condemn one of the lots just to get property under one owner, a taking for that purpose would not be constitutional.

My own view is that reasonable eminent domain, including some to affect more indirect public uses, is necessary to the overall functioning of government, but that it clearly should and does have its limits as already set out by the courts. I also believe that these difficult decisions are best left to the courts, who are responsible for enforcing constitutional rights and are better equipped than the legislative or executive branch to independently judge the merits of any individual case, and that, as has been the longstanding practice, eminent domain laws and guidelines are better left to the states rather than our federal government.

I opposed H.R. 4128, as it came before me on final passage, for two reasons. First, it "federalized" the law of eminent domain, and I believe this is an area of the law which should be left to individual states, as it has been for centuries, rather than usurped and standardized by our federal government through Congress. Second, it went way beyond what might otherwise have been appropriate to respond to the specific situation in Kelo and would effectively prohibit the use of eminent domain for property acquisitions related in any way to government efforts to foster economic development, which was why it was opposed by state, county and municipal governments and redevelopment agencies throughout our country.

In essence, H.R. 4128 is a well-intentioned but overbroad bill, responding to a difficult court decision, arising from a difficult set of facts. The measure is currently pending in the Senate, which thus far has not scheduled it for a vote.

I also wanted to share the attached letter I recently received from the National League of Cities offering the comparable perspective of state and local government with respect to this vote:

"On behalf of the National League of Cities (NLC), the country's largest and oldest organization serving municipal government, with nearly 1,600 direct member cities and 49 state municipal leagues that collectively represent more than 18,000 United States communities, thank you for your recent vote against H.R. 4128, the Private Property Rights Protection Act of 2005. NLC applauds your courageous position on this politically difficult issue.

"NLC acknowledges the spirit underlying this bill and does not condone abuse of eminent domain power that violates state law. However, NLC believes this bill, or any anti-eminent domain bill pending in Congress, is unnecessary at this time because of the ongoing actions of state legislatures and the absence of direct evidence confirming that alleged abuses of eminent domain authority are of a national scope and scale that demand immediate federal action.

"Again, thank you for your tremendous support on behalf of our nation's cities. NLC looks forward to future opportunities to work with you on this and other issues that impact municipalities."

Hawaii Reporter: www.hawaiireporter.com

Congressman Ed Case (D-HI): ed.case@mail.house.gov