Another Chance at Federal Eminent Domain Reform

In the aftermath of the Supreme Court’s controversial Kelo decision, which allowed the condemnation of private property for economic development, some 44 states have passed eminent domain reform laws. Although many of those laws are likely to be ineffective, overall a good deal of progress has been made at the state level in curbing abusive condemnations, including by state courts enforcing the property rights provisions of their state constitutions.

Unfortunately, very little has been achieved at the federal level during that time. On the third anniversary of Kelo in 2008, I summed up federal reform efforts as follows:

[Insert sound of crickets chirping, grass growing, and paint drying].

Not much has changed since then. This is unfortunate because there is much that the federal government can do to prevent harmful takings. Many states have failed to pass effective reform laws, and federal funding often facilitates Kelo-like takings there.

Fortunately, as Christina Walsh of the Institute for Justice explains in this recent op ed, Congress now has another opportunity to rectify its previous omissions:

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….

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….

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.

Even if it passes, this bill would not end eminent domain abuse or even all federal funding for it. But it would be a valuable step on the right direction. Past history does not bode well for the bill’s prospects in the Senate. And it’s especially difficult to pass legislation during an election year. However, it’s possible that things will be different this time.

For those who worry that federal intervention in this field would undermine federalism, I have addressed that argument in considerable detail here.