This Land is Your Land, This Land is My Land: Congress Responds to Court on Eminent Domain

If your town was struggling economically, would you be in favor of a large development project that would bring in jobs? What if that project replaced a neighborhood and forced a few people out of their homes? Is it worth it to sacrifice a few for the good of many?

These are questions we must ask when considering the Fifth Amendment of the Constitution, which awards government the power to appropriate private property for public use - the power of eminent domain.

Congress reacts to the Supreme Court

The Senate Judiciary Committee held hearings on September 20, 2005 in order to inform new legislation that will address the controversial issue of eminent domain.

The committee heard testimony by Susette Kelo, a nurse at the center of a Supreme Court case about eminent domain. In the case, the City of New London, Conn. claimed that its plan to replace a declining neighborhood with a new hotel, office space, residential area, and river walkway fits the description of public use. But the affected property owners, including Susette Kelo, argue that their homes are being destroyed for a very private development - the pharmaceutical giant Pfizer wants to build a research facility there, which then demands the hotel and new residences.

Economic development v. property rights

In June 2005, the majority of Supreme Court justices ruled in favor of the town’s plan for economic development, saying that "public use" should be understood as "public purpose."

Justice John Paul Stevens explained that economic development is one of government’s many functions, so New London officials have the right to utilize the Fifth Amendment to revitalize the city, which suffers from high unemployment.

Although the development project would bring in new jobs, many New London residents don’t want to sacrifice their homes to the cause and say that the pressure to sell is abuse.

Dissenting Justice Sandra Day O’Connor was concerned with government abuse as well. She fears that the decision will have far-reaching consequences: "The government now has license to transfer property from those with fewer resources to those with more. The founders cannot have intended this perverse result."

Justice Clarence Thomas agreed that the weight of the decision would fall on the less fortunate. Justices William H. Rehnquist and Antonin Scalia joined in the dissent.

But the majority opinion is that economic revitalization projects benefit a greater number of lower and middle-class workers and so the sacrifice is worth it. Justices Stephen G. Breyer, Ruth Bader Ginsberg, Anthony M. Kennedy and David H. Souter joined the majority opinion.

A hint of federalism

In his decision, Justice Stevens stated that local governments are most capable at determining community needs and suggested that localities tend to make positive development decisions like the New London plan, which he called "carefully formulated."

The idea that local governments are more adept at community decision-making is an idea embraced by both sides of the political spectrum, but traditionally favored by Republicans.

However, most Republicans are standing on the private property side of this issue. They feel that, in most circumstances, government should not have the power to seize citizens’ property.

And many states agree. At least eight have forbidden the use of eminent domain to increase tax revenue and jobs, including Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina, and Washington.

Congressional response

Lawmakers on both sides of the aisle are concerned that the Supreme Court decision will encourage local governments to transfer private property to commercial developers simply because they want more revenue. Both houses of Congress plan to introduce legislation to limit the scope of eminent domain.

In the Senate, Republican John Cornyn (Texas) plans to introduce a bill that would prevent states from using federal funds in economic development projects that exercise eminent domain. Further, the bill would prevent the federal government from using eminent domain to pursue economic development.

A similar bill has already been introduced in the House by its sponsor, James Sensenbrenner Jr. (R-Wisconsin).

Republican Senator Orrin G. Hatch of Utah plans to introduce legislation that would create a federal advisor position for eminent domain cases. The advisor would serve as a mediator between state/local agencies and property owners.

The role of government

At issue is the role of government. Is it the government’s responsibility to foster a strong economy, even if it creates hardship for some? Or, should government work to protect property rights, even at the expense of economic expansion? What should the federal government do to ensure that local governments don’t abuse the Fifth Amendment?

What do you think?

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Posted on: 9/24/2005