Kelo Before the House Judiciary Committee (Again)

Kelo continues to provide fodder for political debate ten years after the decision, and the latest installment of this debate was a hearing last week before the U.S. House of Representatives Judiciary Commitee, Subcommittee on the Constitution and Civil Justice, entitled “The State of Property Rights in America Ten Years After Kelo v. City of New London.”   My testimony is available here and other testimony is available on the subcommittee website.

The basic debate between the Republican members of the subcommittee and their witnesses, on the one hand, and the Democratic members and their witness, on the other, was over whether it would be appropriate for Congress to address the use of eminent domain for economic development now, given that at least 43 states have already adopted post-Kelo eminent domain reform legislation. The majority party and their witnesses contended that the state responses to Kelo have been uneven and inadequate and therefore Congress should act.  No Kelo bill has yet been introduced in this Congress.  But past Kelo bills, which were approved in the House of Representatives and then died in the Senate, would have denied federal economic development funding to state and local governments unless they complied with a federal standard for the use of eminent domain. The proposed standard in those bills most closely resembled the relatively extreme interpretation of the “public use” requirement advanced by Justice Clarence Thomas in his solitary dissent in Kelo.

The other side argued that the states have responded to the Kelo decision in many diverse ways that reflect the needs and values of the individual states, and that Congress should not seek to impose a draconian, one-size-fits-all national standard that would override the judgments of the state legislatures. This seems like a winning argument to me.  But then I was one of the ones making it.

If the Kelo bill is reintroduced in this Congress, prompt passage in the House appears assured, but the bill would likely face a rocky path in the Senate.  Stay tuned.