Congress Acts On Eminent Domain!

[visionary]

http://www.washingtonpost.com/wp-dyn/content/article/2005/06/30/AR2005063001082_pf.html

Legislators Move to Blunt Eminent Domain Ruling

By Mike Allen and Charles Babington

Washington Post Staff Writers

Thursday, June 30, 2005; 4:15 PM

Key leaders of both parties in both chambers of Congress vowed today to use the power of the purse to negate this week's Supreme Court ruling allowing local and state governments to use eminent domain to take private property for economic development purposes.

Bills introduced in the House and Senate would yank federal funds from any city or state project that forced people to sell their property to make way for a project like a hotel or strip mall.

The 5-to-4 Supreme Court decision last week has sparked an immediate and visceral backlash among conservatives. The response on Capitol Hill was unusual for its speed and bipartisan support, and for the biting language the lawmakers used to criticize the high court.

House Majority Leader Tom DeLay (R-Tex.) said the planned intervention by Congress is part of a broad effort to "assert the responsibility and the authority of the Congress to be a check on the judiciary.

"Times have changed, particularly in the last two to three years," DeLay said during a rare appearance in the studio of the House Radio-TV Gallery. "This Congress is not going to just sit by -- idly sit by -- and let an unaccountable judiciary make these kinds of decisions without taking our responsibility and

our duty given to us by the Constitution to be a check on the judiciary. And this is an example of doing that."

The ruling permits the "taking" of a home or neighborhood, with compensation, for such purposes as the construction of a shopping center. Activists said it has struck such a nerve that it will now be a key issue in convincing conservatives and libertarians to join the confirmation battle when one of the justices steps down.

House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) said he will introduce a Private Property Rights Protection Act that will prohibit any state or municipality from using federal funds for any project in which economic development is used as a justification for exercising eminent domain.

"This decision, in my opinion, has the potential of becoming the Dred Scott decision of the 21st century," Sensenbrenner said. He was referring to the 1857 ruling that affirmed slaves as property without the rights of citizens, and was overturned when the 14th amendment was ratified in 1868.

A committee description said the locality or state would "lose any federal funds that would contribute in any way to the project the property would be taken for." The lead Democratic sponsor is Rep. John Conyers Jr. (Mich.), ranking minority member of the Judiciary Committee, and the committee said at least two other Democrats are co-sponsors.

Sen. John Cornyn (R-Tex.) is introducing a similar measure in the Senate, along with Sen. Bill Nelson (D-Fla.). Their measure -- the Protection of Homes, Small Businesses and Private Property Act -- relies on the authority of the legislature to regulate the use of federal funds, and declares the view of Congress that "the power of eminent domain should be exercised only 'for public use' " and not "to further private economic development."

Sensenbrenner said at the news conference that the federal government's money "will not be used to finance taking somebody's property from them to build a strip mall or a hotel or something simply because more tax revenue will come in as a result of an improvement." He said the decision, Kelo v. City of New London, "shows that the majority of the court had an utter disrespect for private property."

DeLay said as he left the news conference that he views the legislation as part of the review of congressional oversight of the judiciary that he requested after the death of Terri Schiavo, a Floridian who died March 31 after her feeding tube was removed despite congressional intervention to establish her rights in federal court.

"People are starting to understand what we've been talking about for the last two to three years," he said.

House Minority Leader Nancy Pelosi (D-Calif.) said at an earlier news conference that "very central in that Constitution is the separation of powers."

"When you withhold funds from enforcing a decision of the Supreme Court, you are in fact nullifying a decision of the Supreme Court," Pelosi said. "This is in violation of the respect of separation of powers in our Constitution -- church and state as well. Sometimes the Republicans have a problem with that, as well."

In opposing a Republican amendment about the issue today, Rep. David Obey (Wis.), ranking Democrat on the House Appropriations Committee, said on the floor today that the decision was "nutty" but that the solution is legislation or a constitutional amendment, not punitive measures.

"The idea that this House, every time we don't like a court decision, should decide that we're not going to allow federal money to be used to enforce that court decision is as nutty as the original court decision in the first place," Obey said. "So I would hope that we would recognize that the Founding Fathers created the system of separation of powers. They created three independent branches of government for a purpose."

© 2005 The Washington Post Company

[Thiebear]

If

if owning property means nothing then we lose focus.

if any property can be ripped out for any reason = no hope and no reason to strive to achieve...

I hope [insert leadership here] fixes this abomination on the people...

[visionary]

Originally posted by visionary

http://www.washingtonpost.com/wp-dyn/content/article/2005/06/30/AR2005063001082_pf.html

House Minority Leader Nancy Pelosi (D-Calif.) said at an earlier news conference that "very central in that Constitution is the separation of powers."

"When you withhold funds from enforcing a decision of the Supreme Court, you are in fact nullifying a decision of the Supreme Court," Pelosi said. "This is in violation of the respect of separation of powers in our Constitution -- church and state as well. Sometimes the Republicans have a problem with that, as well."

LOL

nice of her to provide some constructive criticism...

[Larry]

So, let me see.

"Conservatives" are going to use the federal power to tax people and then give that money back, with strings, to override local governments who are performing legal actions.

I really don't like the SC decision. But the right way to fix it is at the local level. (I was wondering how long it would take for Florida to have a voter referrendum to ammend the state Constitution.)

-----

That said, am I the only one who, based on that above quote, thinks Nancy Pelosi looks like as big a partisan hack as Bill Frist did, "diagnosing" Terry Schiavo?

(And, a partisan hack who's on the "wrong" (in the sense of "costing you votes") side of the issue?)

[Fred Jones]

"Times have changed, particularly in the last two to three years," DeLay said during a rare appearance in the studio of the House Radio-TV Gallery. "This Congress is not going to just sit by -- idly sit by -- and let an unaccountable judiciary make these kinds of decisions without taking our responsibility and our duty given to us by the Constitution to be a check on the judiciary. And this is an example of doing that."

I disagreed with the Court's decision and I really don't have a problem with this particular action by Congress. Delay, however, is running his mouth again. He is just out of control. The Dems have a point that Congress can't simply create laws everytime they don't like a SC decision.

[Guest Gichin13]

Originally posted by visionary

House Majority Leader Tom DeLay (R-Tex.) said the planned intervention by Congress is part of a broad effort to "assert the responsibility and the authority of the Congress to be a check on the judiciary.

"Times have changed, particularly in the last two to three years," DeLay said during a rare appearance in the studio of the House Radio-TV Gallery. "This Congress is not going to just sit by -- idly sit by -- and let an unaccountable judiciary make these kinds of decisions without taking our responsibility and

our duty given to us by the Constitution to be a check on the judiciary. And this is an example of doing that."

I am starting to have a completely irrational level of dislike for this man. No fact can remain untwisted.

I certainly can understand the reaction of people criticizing the decision on takings. I also did not agree with the state overpowering property rights to that extent.

BUT! Doesn't the decision stand for the proposition that the COURT will NOT exercise its judicial powers to find a LEGISLATIVE action unconstitutional??? The case represents judicial deference towards legislative or executive action.

[Guest Gichin13]

Originally posted by Larry

I really don't like the SC decision. But the right way to fix it is at the local level.

I heard there is already a proposal in Virginia to carve out exceptions to eminent domain power. It will be quite some time before we hear more ...

[Ancalagon the Black]

I am so confused.

The Supreme Court said, "We know that some people THINK the Constitution forbids eminent domain in this instance, but we're going to side with the legislators and uphold the law."

Tom DeLay says, "F*** you, Supreme Court! It's time you stopped overriding our laws!"

What I am missing?

[Island Boy]

If you dont like the decision by the SC, check this out:

http://www.ij.org/private_property/castle/6_29_05pr.html

[zoony]

maybe someone will buy philly and detroit and turn them into parking lots...

just kidding.

ha.

ha.

ha.

ahem.

[Ghost of]

Originally posted by Ancalagon the Black

I am so confused.

The Supreme Court said, "We know that some people THINK the Constitution forbids eminent domain in this instance, but we're going to side with the legislators and uphold the law."

Tom DeLay says, "F*** you, Supreme Court! It's time you stopped overriding our laws!"

What I am missing?

Um, but that's only if you consider federal legislators the equivalent of the jerkwaters down in New London or Anyplace, USA.

While they may come from those ranks(of state legislators) at THIS moment, that is not what they're saying.

Essentially, the local governments have probably even violated their own State Constitutions when seizing land or state governments have done so and thus, this is not a case of legislators on the federal level really being to blame.

So, no, your 'translation' does not compute

(But I agree with Larry.)

Thing is, I may not like the fact that fed funds are tied into this, but Congress DOES have the right to act as a check on the judiciary. Theoretically, the check/balance is supposed to be strong enough that you could have two or even all three branches at odds. THATS THE POINT. If the Congress makes an unconstitutional decision, the Executive and all State governments are supposed to act immediately to counter it, if not outright defy it.

Yes, that means messiness, but that's good. If only it had been done decades previously, more of the old USC would obtain in spirit.

[Ancalagon the Black]

Originally posted by Ghost of Nibbs McPimpin

Um, but that's only if you consider federal legislators the equivalent of the jerkwaters down in New London or Anyplace, USA.

Essentially, the local governments have probably even violated their own State Constitutions when seizing land or state governments have done so and thus, this is not a case of legislators on the federal level really being to blame.

So, no, your 'translation' does not compute

Ah, but that's not what I was saying.

DeLay is quite clearly accusing the Supreme Court of being a "runaway jury" when he calls them "unaccountable." The implication is that the Court is wildly running hither and thither making up laws--judicial activism at its worst. But that's not the case here. DeLay is trying to use anti-activist-judge rhetoric in a case where it doesn't apply. Even George Will agrees with me on the fact that, in this case, it's the conservatives who were looking for "judicial activism."

As you know, I think the Court made the wrong decision. And, without really examining the matter, I think that Congress' actions here are sound. But DeLay should just be saying, "The Court made the wrong decision, and Congress will remedy the matter." Instead, he's being intentionally misleading.

[Ghost of]

Here's the thing, though:

Judicial activism isn't only(and this is foolishly misapplied) to decisions that run counter to local laws or precedents set in recent years.

It is decision-making that affirms or rejects constitutionally sound law or appeals.

Only a complete and utter moron thinks that taking land for public "purpose" and higher property tax is anything resembling what the Framers designed or meant. Thus, any ruling counter to it IS activism.

Now, I may be alone in the world on this one, but judicial activism does not merely include decisions that strike down existing law or limits and replace them with one of the court's choosing. That would be quite a narrow definition.

Also, one decades activism is another's 'solid precedent.'

[Ancalagon the Black]

Originally posted by Ghost of Nibbs McPimpin

Now, I may be alone in the world on this one, but judicial activism does not merely include decisions that strike down existing law or limits and replace them with one of the court's choosing. That would be quite a narrow definition.

A narrow one, but an objective one. Your definition appears very close to "judges making decisions I don't agree with."

[Ghost of]

Originally posted by Ancalagon the Black

A narrow one, but an objective one. Your definition appears very close to "judges making decisions I don't agree with."

Comes close, but the Constitution isn't 4000 years old. I mean, we have contemporary jurist's opinions, the Federalist Papers and many other sources from which to draw to know that the 'commerce clause' doesn't mean someone growing wheat on their own plot of land does not fall under it.

Thus, decisions counter to that meet that standard. And yes, there WILL BE some cases that can fall either way that do not amount to 'judicial activism' no matter how one feels about the particular issue.

But in THIS case, it is clear that while the justices sided with existing LOCAL ACTIVITY, I wonder if there is even any law explicitly STATING that governments may take land for private development. This seems much more in line with an expansionist view of eminent domain in which the fact that someone did it once and got away with it established the 'understanding' of the law.

WHich makes for horrible precedent and, here, judicial activism on BEHALF of bad local conduct.

[visionary]

I don't know, I don't much like Delay, but it seems like some people just want to jump on him for anything. I didn't see anything wrong with his comments, no more than usual...anyway.

Anyway he is not the only one involved in this and it will definitely bear watching.

[Joe Sick]

The obvious solution is for each state to rule that they can't use eminent domain for this purpose. The Supreme Court left open this exemption. I believe Montana already has this law, except they say property can't be seized for ANY reason. At least eight states - Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington - forbid the use of eminent domain for economic development unless it is to eliminate blight.

The withholding of federal funds is a slippery slope that I hope Congress doesn't go down.

--------

Yes, I am against this ruling, too. However, the argument could be made that this ruling was technically correct.

From dailykos.com, citing precedents and all that.

http://www.dailykos.com/story/2005/6/25/201045/439

In effect, the landowners were saying that land could only be used if it "eliminated a harm" to the community, as in a 1954 court case. (Were they liberal activists then, too?) They were saying that since grabbing someone's property for a road is not justified by "eliminating a harm", that that standard doesn't apply. Also, it would be near impossible to judicate on what "harm" is.

I still don't like the ruling and I hope the states will handle this on their own.

[ChocolateCitySkin]

Congress does it all the time. They have bunches of ways of circumventing losing situations. This isn't the first time they've forced someone's hand by withholding federal money. Take for example new orleans. They would still have a 18 year old drinking age of congress hadn't said, "well if you don't change your laws you won't have money for roads."

[Thiebear]

Originally posted by ChocolateCitySkin

Congress does it all the time. They have bunches of ways of circumventing losing situations. This isn't the first time they've forced someone's hand by withholding federal money. Take for example new orleans. They would still have a 18 year old drinking age of congress hadn't said, "well if you don't change your laws you won't have money for roads."

I vaguely remember them doing that to D.C. also...

If your branches of the gov't are not fighting each then their not trying...

Like or dislike of one individual does not mean that as a whole they can not act. One persons view on the situation may be off but if it gets us closer to the true intentions of the Constitution I could really care less...

[DjTj]

Imagine that - the system works...

Instead of whining about judges, our elected representatives actually do something about it (while whining about judges).

This is the way things like this are supposed to get resolved. When people disagree about what the government should be able to do, they complain to their representatives, and new laws get passed.

The Supreme Court's job is not to be "in touch" with America, its job is to interpret precedent. If that precedent is out of touch with what people want, Congress and the state legislatures can take action.

We saw it this week with the flag burning amendment, and we see it now with eminent domain. Attacking judges is wholly unproductive and threatens the rule of law. It makes much more sense to try to change things where we can really make a difference - at the ballot box.

[Guest Gichin13]

Originally posted by Ancalagon the Black

Ah, but that's not what I was saying.

DeLay is quite clearly accusing the Supreme Court of being a "runaway jury" when he calls them "unaccountable." The implication is that the Court is wildly running hither and thither making up laws--judicial activism at its worst. But that's not the case here. DeLay is trying to use anti-activist-judge rhetoric in a case where it doesn't apply. Even George Will agrees with me on the fact that, in this case, it's the conservatives who were looking for "judicial activism."

As you know, I think the Court made the wrong decision. And, without really examining the matter, I think that Congress' actions here are sound. But DeLay should just be saying, "The Court made the wrong decision, and Congress will remedy the matter." Instead, he's being intentionally misleading.

exactly. How can it be judicial activism when the court is supporting the legislatures action??

Delay will weasel anything at anytime, that is what I am learning.

On another point, while I think George Will is often a complete pencil neck/pocket protector geek type, I admire his intellectual honesty and consistency. He will call a spade a spade when they leave the realm of logic in the conservative camp.

[Guest Gichin13]

Originally posted by Ghost of Nibbs McPimpin

Comes close, but the Constitution isn't 4000 years old. I mean, we have contemporary jurist's opinions, the Federalist Papers and many other sources from which to draw to know that the 'commerce clause' doesn't mean someone growing wheat on their own plot of land does not fall under it.

Thus, decisions counter to that meet that standard. And yes, there WILL BE some cases that can fall either way that do not amount to 'judicial activism' no matter how one feels about the particular issue.

But in THIS case, it is clear that while the justices sided with existing LOCAL ACTIVITY, I wonder if there is even any law explicitly STATING that governments may take land for private development. This seems much more in line with an expansionist view of eminent domain in which the fact that someone did it once and got away with it established the 'understanding' of the law.

WHich makes for horrible precedent and, here, judicial activism on BEHALF of bad local conduct.

You are rewriting the definition of judicial activism.

The base definition was basically the court rewriting or overturning otherwise valid laws and actions of other branches (or engaging in "judicial law making"). The means alleged judicial activists used were to expand the scope of constitutional powers of the courts to inject the court into roles more traditionally reserved to the legislative and executive branch.

Of course, the cry was heard most early and most often from Southerners fighting Brown v. Board of Education and its progeny, so I think the doctrine has a somewhat sordid intellectual underpinning.

The Commerce Clause has been injected into the debate because the Supreme Court has used it so frequently to expand the federal court's powers of review as virtually everything has some connection or impact on interstate commerce. The funny part is that conservatives use that clause just as often to inject their views as liberals (the recent medical marijuana case is a good example here).

At base level, Delay really is making no sense, but that is no surprise. What is a surprise is that somehow this guy has an audience and people who think he actually is making sense. That is what I cannot figure out.