Eminent Domain Reform Stalled in the U.S. Senate

John Kramer
John Kramer · April 26, 2006

Arlington, Va—Nearly six months after the U.S. House of Representatives overwhelmingly passed eminent domain reform, and almost one year after the U.S. Supreme Court issued its now infamous Kelo decision (allowing non-blighted homes to be taken for someone else’s private gain), the U.S. Senate has yet to act on legislation that would restrict this awesome power of government.

Survey after survey nationwide demonstrates that 85 percent or more of the American public supports reform that would protect their homes, small businesses, farms and churches from eminent domain abuse.

On November 3, 2005, the U.S. House of Representatives passed “The Private Property Rights Protection Act of 2005” (also known as HR 4128) by a vote of 376 to 38. The bill, sponsored by representatives from across the political and ideological spectrum, including Reps. F. James Sensenbrenner (R-WI), Henry Bonilla (R-TX), John Conyers, Jr., (D-MI) and Maxine Waters (D-CA), denies, for two fiscal years, federal economic development funds to state and local governments that use eminent domain for private commercial development. It also directly prohibits the federal government from using eminent domain for private development.

Federal funds were used in the New London, Conn., project that sought to take away the homes of Susette Kelo and her neighbors and replace them with private development.

“The Senate should pass HR 4128,” said Dana Berliner, a senior attorney for the Institute for Justice, which argued the Kelo case on behalf of the homeowners. IJ and its Castle Coalition—a grassroots organization of homeowners and activists from across the nation—have been leading the fight at the federal level and in 47 states to reform eminent domain laws. “HR 4128 prohibits any federal agency from using eminent domain for economic development. It defines takings for economic development as those that transfer ownership or lease property to private parties. But the bill does not prohibit takings for public buildings, common carriers, roads, water-related infrastructure or utilities.”

The House bill also has a clear and limited exception for taking property to remove “harmful uses of land provided such uses constitute an immediate threat to public health and safety.” This is commonly called taking “blighted” property. In many states, “blight” can simply mean that the property could have a higher economic use as something else, that there is “diversity of ownership” (different people owning different homes), or that the homes or businesses are not brand-new. Cities should not receive federal funds to take homes and businesses that do not pose a real and immediate threat to public health or safety.

“The label of blight has been used to raze whole neighborhoods and destroy communities,” said Scott Bullock, an IJ senior attorney who argued the Kelo case. “Historically, such condemnations have especially affected neighborhoods with substantial numbers of racial and ethnic minorities, as well as elderly citizens. For this reason, the NAACP and other groups specifically opposed an attempt to amend HR 4128 to allow using eminent domain to take neighborhoods that met a much more vague and broader definition. The fact that HR 4128 has only a limited and well-defined exception for taking harmful property, rather than an enormous exception that swallows the rule and will victimize minority and poor neighborhoods, is one of the most important aspects of the Act.”

“There is no question that cities and developers are revving up their political machine against this reform despite its tremendous popular support,” said Chip Mellor, president and general counsel of the Institute for Justice. “Those who profit from the status quo of eminent domain abuse—the Goliaths of this nation—are fighting to stop this reform and maintain this power. The public—the Davids in this fight—want nothing more than to protect what is rightfully theirs and to be left alone. We hope the Senate responds to their constituents’ clear desire and passes HR 4128.”

“The U.S. Supreme Court dropped the ball in protecting home and small business owners from eminent domain abuse,” said Bullock. “Now is the time for the Senate to step in to stop the federally funded use of eminent domain for private profit.”