The Eminent Domain issue

House takes aim at Supreme Court's controversial ruling on property rights

By Pete Kasperowicz

The House on Monday afternoon is expected to approve legislation that would overturn a 2005 Supreme Court decision holding that state and local governments can take private property under the principle of eminent domain in order to further their economic development plans.

The 2005 decision, Kelo v. City of New London, was seen by Republicans in particular as a case of government overreach. The Fifth Amendment to the Constitution limits the authority of government to seize property, by requiring compensation and mandating that the land taken be put to public use.

Prior to Kelo, the Supreme Court had held that the seizing of slums and the transfer of that land to private developers fit the "public use" standards. But in Kelo, the Supreme Court upheld the right of New London, Conn., to take non-blighted land and transfer it to a private developer, in a bid to increase local tax revenue.

That decision prompted Rep. James Sensenbrenner Jr. (R-Wis.) to push for corrective legislation to overturn that decision, which the House easily passed in 2009. His new bill, H.R. 1433, was approved by the House Judiciary Committee on Jan. 24, and Sensenbrenner said this fix is still needed to reverse the court's action.

"The U.S. Supreme Court wrongly decided to broaden states' eminent domain power to allow governments to seize private property for economic development," he said in January. "Expanded eminent domain is an abject offense on Americans' basic freedom, and Congress must restore the basic constitutional protections of private property.

"All Americans should be able to trust that they have freedom from blatant governmental overreach. The federal government should not be able to utilize eminent domain to force private-to-private transfer of property."

His bill, the Private Property Rights Protection Act, would prevent states from using eminent domain over property to be used for economic development, and establishes a private right of action for property owners if a state or local government violates the new rule.

House Republicans are bringing up Sensenbrenner's bill for a vote under a suspension of House rules, which will require a two-thirds majority vote. The House appears likely to meet that hurdle — the bill was approved in Judiciary by a 23-5 vote, and Sensenbrenner's 2009 bill passed 376-38.