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Expressing the Grave Disapproval of the House Regarding Majority Opinion of Supreme Court in Kelo v. City of New London

Location: Washington, DC



Mr. UDALL of Colorado. Mr. Speaker, I rise in support of this resolution expressing disapproval of the majority opinion of the U.S. Supreme Court in the case of Kelo et al v. New London et al.

That case involved the question of the scope of a local government's authority to use the power of eminent domain, and in particular whether local governments may condemn private houses in order to use the land for uses that are primarily commercial.

The question before the court was whether such use of eminent domain is consistent with the U.S. Constitution's Fifth Amendment--made applicable to the States by the 14th Amendment--which says ``nor shall private property be taken for `public use without just compensation.'' Answering that question required the court to decide what qualifies as a ``public use.''

The case involved actions aimed at redevelopment of a particular neighborhood in New London, Connecticut to encourage new economic activities. Toward that end, a development corporation--technically a private entity although evidently under the city's control--prepared a development plan.

The city approved the plan and authorized the corporation to acquire land in the neighborhood. However, nine people who owned property there did not wish to sell to the corporation. The city of New London chose to exercise its right of eminent domain and ordered the development corporation, acting as the city's legally appointed agent, to condemn the holdout owners' lots. These owners were the petitioners in this case, with the lead plaintiff being Susette Kelo, who owned a small home in the development area.

The owners sued the city in Connecticut courts, arguing that the city had misused its eminent domain power, but lost. They then asked the U.S. Supreme Court to review the Connecticut Supreme Court's decision in favor of the city, arguing that it was not constitutional for the government to take private property from one individual or corporation and give it to another, simply because the other might put the property to a use that would generate higher tax revenue.

The Supreme Court agreed with the City of New London in a 5-4 decision. The majority decision, written by Justice John Paul Stevens, said that local governments should be afforded wide latitude in seizing property for land-use decisions of a local nature. The primary dissent, written by Justice Sandra Day O'Connor, suggested that the use of this power in a reverse Robin Hood fashion--take from the poor, give to the rich--would become the norm, not the exception: ``Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.'' A separate dissent was written by Justice Clarence Thomas, while Justice Anthony M. Kennedy wrote a separate concurrence with the majority's ruling.

The court's decision in this case has attracted considerable comment and criticism. For example, the Rocky Mountain News said ``The 5-to-4 decision expands the already expansive definition of `public use' to mean anything that might conceivably benefit the public through economic development. As Justice Sandra Day O'Connor said in her stinging dissent, the effect is to `wash out any distinction between private and public use of property.' Other editorials and opinion columns were even harsher.

I am not a lawyer, and certainly no expert on this aspect of Constitutional law. But I find Justice O'Connor's analysis of the likely fallout of the decision persuasive and I share the concerns of many of those who have been critical of the decision, especially those related to the possible abuse of the power of eminent domain in situations such as the one involved in this case.

That is why I am voting for this resolution.

I do not fully agree with every word of it--especially the statement that the majority's decision in the ``Kelo'' case ``renders the public use provision in ..... the fifth amendment without meaning.''

But I definitely agree that, as the resolution states, ``State and local governments should only execute the power of eminent domain for those purposes that serve the public good ..... must justly compensate those individuals whose property is assumed through eminent domain ..... [and] any execution of eminent domain by State and local government that does not comply [with the conditions stated] constitutes an abuse of government power and an usurpation of the individual property rights as defined in the fifth amendment.''

I also am in sympathy with the parts of the resolution that state that ``eminent domain should never be used to advantage one private party over another,'' and that state and local governments should not ``construe the holdings'' in the Kelo case ``as a justification to abuse the power of eminent domain.''

And I certainly agree that ``Congress maintains the prerogative and reserve the right to address through legislation any abuses of eminent domain by State and local government.''

However, of course Congress can only take such action in ways that are themselves consistent with the Constitution, and in any event I think we should be reluctant to take actions to curb what some--perhaps even a temporary majority--in Congress might consider improper actions by a State or local government.

The States, through their legislatures or in some cases by direct popular vote, can put limits on the use of eminent domain by their agencies or governments. I think this would be the best way to address potential abuses, and I think we in Congress should consider taking action to impose our ideas of proper limits only as a last resort.


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