So asks Jacob Sullum over the House Agricultural Committee’s Eminent Domain Reform Bill:
Yesterday the House Agriculture Committee approved a bill that would deny federal economic development grants to projects that involve the use of eminent domain “to obtain property for private commercial development.” Unlike the Bond Amendment, which Congress approved in 2005, this bill, known as the Strengthening the Ownership of Private Property Act of 2007, seems to have real teeth.
But here’s a tricky question for limited-government types who believe in respecting the entire Constitution, not just the Fifth Amendment’s requirement that government take property through eminent domain only for “public use,” a requirement the Supreme Court has reinterpreted as a an all-purpose license to redistribute land. Does the proposed limit on federal economic development grants (which, it should be noted, are not constitutionally authorized to begin with) improperly trespass on the states’ authority to set their own eminent domain policies (within the accommodating parameters set by the Supreme Court)? Is this bill analogous to, say, the highway funding threat that pressured every state to raise its drinking age, and therefore objectionable on similar federalist grounds? Does the motiveâ€â€in that case, restricting rights; in this case, protecting rightsâ€â€make all the difference?
[…]
With eminent domain […] the threat is not at all hypothetical, since takings in the name of economic development are happening all the time. Is there a sound constitutional reason why Congress should continue subsidizing them? I think I’ve pretty much convinced myself that the grant restrictions are OK, but maybe you can talk me out of it.
In examining the bill, Ilya Somin, writing at Volokh, notes a few potential problems with the bill beyond the scope of those raised by Sullum:
[…] if enacted, this bill would definitely provide property owners with greater protection against federally subsidized takings than current law. However, there are two problems. First, it is far from clear whether this law can pass the full House – and especially the Senate – unmodified. In November 2005, the House overwhelmingly approved the Private Property Rights Protection Act, a similar (though probably somewhat weaker) reform. However, the PRPA died in the Senate, thanks in part to the behind-the-scenes maneuvering of Senate Judiciary Committee Chairman Arlen Specter. It is difficult to say whether the new Democratic majority in the Senate will be more supportive of this kind of legislation than the Republicans were. But I’m not holding my breath on it.
Probably a good move on Somin’s part, given that it was predominantly the liberal wing of the Court that ruled for New Haven in the travesty that was Kelo—and given that “progressives” are fairly notorious for believing they are better disposed to decide how and where money should be spent, property divided, and behavior determined than individuals who can’t be trusted to look out for either their own best interests, or the interests of the common weal.
Continues Somin:
The second potential problem is that the new legislation may actually only withhold relatively small amounts of funds from offending jurisdictions. This was a major weakness of the Property Rights Protection Act (see my paper, pp. 35-36). Unlike the PRPA, this year’s legislation specifically enumerates the types of federal funds that would be withheld if the act passes. I have not yet had time for a detailed analysis of the range of funds that would be covered. But it seems to be similar to the likely scope of the PRPA, which I estimated to cover only 1.8% of all federal funds available to state and local governments […]
—Which, while not chump change, is not exactly the kind of disinsentive that would be guaranteed to change a state’s practices.
Somin concludes:
[…] there is no question that, if it passes, the new law would have a significant impact in at least some jurisdictions, particularly those urban areas that depend heavily on federal funds. The interesting question is whether the full House and the Senate will support it. Unfortunately, the experience of the PRPA does not give me great cause for optimism.
Those so upset with the GOP over immigration reform might consider this before they decide to stay home in November.
As for Sullum’s questions, my own thought is that the feds have the power to grant funding (and that in itself is a whole other question), then it would have the authority, presumably, to put conditions on the funding. This is a way to pressure the states, but the states are free not to abide, provided that what they are refusing to abide doesn’t run afoul of the Constitution.
Thanks to Kelo, refusal in this case would not put the states in violation of the Constitution. And because the Constitutional authority (again, another issue worth debating) to grant funding falls under the purview of the federal government, the placing of conditions and restrictions on the funding is a question that goes to policy—and not a Constitutional one, I don’t think, given that the states are under no legal compulsion to accept the terms laid out by the federal government. They would forfeit the money, yes; but they would not be running afoul of the Constitution, nor would be the federal government, though they’d most certainly be making an end run around the spirit of the decision in Kelo, if one is inclined to see Kelo as giving a municipality an open market on other people’s property.
And if the feds don’t have the Constitutional authority to grant these monies to the states to begin with (as many federalists hold), than giving less is, in practice, less of a violation of their misuse of power, which is a move toward a smaller federal government.
(h/t IP)
Say Fed funding has been denied my state (hypothetically), does that mean I recieve a lessor Fed tax bill, since the county I live in is getting less money than others?
Yeah, didn’t think so…
Meaning, if you can hire someone smart enough to split your proposed economic project into say a Phase I and a Phase II, you can Kelo the hell out of Phase I and pocket the federal money for Phase II.
No?
If the Supremes had not made such a ruling, Congress would not feel compelled to try to remedy it. Having said that, with my absolute disdain for the congresscritters, I suspect that their attempts to fix things will, in the end, make things exponentially worse.
I’m so out of my mind, that I would simply suggest that the Constitution be amended to reflect a ban on takings for PRIVATE use as opposed to PUBLIC. Define it simply. I don’t trust statutory constructs coming from the current Congress, that might be examined by the current SCOTUS…
Annoyingly enough, Major John, as you recall the Fifth Amendment already says public use.
The damn US Supreme Court can’t read and decided that “public use” is essentially meaningless. It should never have been necessary to clarify this for the court, but evidently we do need to.
Ya think?
Suspect? You have any doubt at all?
Perhaps all 535 of them should be required to pass a “Constitution Quiz” (with at least a 50% score) before they’re allowed to take their seats on election? Or better yet, every year at 8AM on New Year’s Day.
As an aside, I was quite amused at Sen. Byrd reading them the rules today, it was unexpected levity after watching the parade before him explain how great the their immigration amnesty bill is.
RObin – if the SCOTUS and Congress can’t figure it out from the very clear language of Amendment V, then we’ll just have to go back and tack on another amendment saying “really, we mean it”.
Right?
Heh.
Mark – I guess I am hoping against hope that this set of congresscritters will do 1 thing right. I know, silly of me …
The Constitution Quiz is an idea I have previously espoused, but clearly something that they would never subject themselves to. It is far easier to trample all over a “living document” when you are not constrained by actually having to understand what that document says.
Major John – the “We Really Mean It” Amendment is a brilliant idea.
The money line. Do you ever feel like we are talking about angels dancing on pinheads? I fear the beast is already loose.
Hmm, well JD, I’d be perfectly willing for them to take the quiz behind closed doors, as well as the make-up quiz that 99% of them would have to take after failing the first time.
Hell, as an added bonus, that might go very far in helping seal up the leaks as well, there’s no way they’d want their failing grade leaked, so they may think twice about conversing with their buddies in the MSM on other subjects too…
Yea, I know, all of my post above fits that mold too.
In all matters of government, the correct answer is usually: Do nothing.—LT R.A. Heinlein, USNA 1929
TW: What is this “baker’s dozen” crap? I wanted14.
Short term, they’d be losing money on the deal, but most businesses won’t want to locate somewhere they can’t be assured of having for the long haul, so (imagining for the moment)considering the long run, if a state were to buck it, they’d be better off.
On the other hand, it’s certainly good policy for casinos.
There is precedent. Did congress violate the constitution in the early 1980’s by withholding highway funds from states that did not fall in line with 55 mph speed limits and 21 yrs drinking age?