New Legislation Introduced to Protect Private Property from Economic Development Takings

Last week, Senators John Cornyn of Texas and Rand Paul of Kentucky introduced legislation to strengthen private property rights by limiting the power of eminent domain. The Protection of Homes, Small Businesses and Private Property Act of 2012 seeks to prevent the federal government from using its eminent domain power and state and local governments from using federal funds to fund the use of eminent domain for economic development.  Economic development takings have been at the forefront of the national conversation regarding eminent domain since the Supreme Court ruled in Kelo v. New London (2005) that local governments may use eminent domain to take private property for private development as long as the takings are part of a clear economic development plan intended to benefit the community as a whole.

Within the findings section of the bill, it is stated that the “protection of homes, small businesses and other private property rights against government seizures and other unreasonable government interference is a fundamental principal and core commitment of our Nation’s founders.” Further, “It is appropriate for Congress to take action, consistent with its limited powers under the Constitution, to restore the vital protections of the Fifth Amendment and to protect homes, small businesses, and other private property rights against unreasonable government use of the power of eminent domain.”

Senators Cornyn and Paul announced the Protection of Homes, Small Businesses and Private Property Act of 2012 on the eve of the 7^th anniversary of the Court’s 5-4 decision in Kelo (June 23, 2012).  The legislation also references Kelo and the Court’s decision:

The Court’s decision in Kelo is alarming because, as Justice O’Connor accurately noted in her dissenting  opinion, joined by the Chief Justice and Justices Scalia and Thomas, the Court has ‘‘effectively . . . delete[d] the words ‘for public use’ from the Takings Clause of the Fifth Amendment’’ and thereby ‘‘refuse[d] to enforce properly the Federal Constitution’’.

Under the Court’s decision in Kelo, Justice O’Connor warns, ‘‘The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.’’.

While Senators Cornyn and Paul’s bill seeks to protect private property rights as the similar House bill H.R. 1433 does, the Senate bill lacks the teeth that H.R. 1433 included to enforce compliance.  H.R. 1433 establishes penalties for violations of the proposed law as well as provides property owners with a right of action to bring suit in court to enforce the law.  (See our previous post regarding H.R. 1433 here.)

Still, we’ll take the introduction of the Protection of Homes, Small Businesses and Private Property Act of 2012 as a positive sign that the Senate might be favorable to H.R. 1433 or some version of one or a combination of both of these proposed bills.  Perhaps after 7 years of public outcry and two attempts (H.R. 1433 was originally introduced as H.R. 4128 (109th) (Oct 25, 2005), Congress will enact legislation to protect private property ownership.

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