POL - Yay for the RIGHT when theyre RIGHT!

[Flasch186]

I agree with the White House 100% on this!!! Good for the right and the Dems who are against this bill should be forced to squat in their own poop for a week!!!


House bill counters eminent domain ruling

Friday, November 4, 2005; Posted: 3:34 a.m. EST (08:34 GMT)


WASHINGTON (AP) -- Contending that the Supreme Court has undermined a pillar of American society -- the sanctity of the home -- the House overwhelmingly approved a bill Thursday to block the court-approved seizure of private property for use by developers.

The bill, passed 376-38, would withhold federal money from state and local governments that use powers of eminent domain to force businesses and homeowners to give up their property for commercial uses.

The Supreme Court, in a 5-4 ruling in June, recognized the power of local governments to seize property needed for private development projects that generate tax revenue. The decision drew criticism from private property, civil rights, farm and religious groups that said it was an abuse of the Fifth Amendment's "takings clause." That language provides for the taking of private property, with fair compensation, for public use.

The court's June decision, said House Judiciary Committee Chairman James Sensenbrenner, R-Wisconsin, changed established constitutional principles by holding that "any property may now be taken for the benefit of another private party."

The ruling in Kelo v. City of New London allowed the Connecticut city to exercise state eminent domain law to require several homeowners to cede their property for commercial use.

With this "infamous" decision, said Rep. Phil Gingrey, R-Georgia, "homes and small businesses across the country have been placed in grave jeopardy and threatened by the government wrecking ball."

The bill, said Chip Mellor, president of the Institute for Justice, which represented the Kelo homeowners before the Supreme Court, "highlights the fact that this nation's eminent domain and urban renewal laws need serious and substantial changes."

But opponents argued that the federal government should not be interceding in what should be a local issue. "We should not change federal law every time members of Congress disagree with the judgment of a locality when it uses eminent domain for the purpose of economic development," said Rep. Bobby Scott, D-Virginia.

The legislation is the latest, and most far-reaching, of several congressional responses to the court ruling. The House previously passed a measure to bar federal transportation money from going for improvements on land seized for private development. The Senate approved an amendment to a transportation spending bill applying similar restrictions. The bill now moves to the Senate, where Sen. John Cornyn, R-Texas, has introduced companion legislation.

About half the states are also considering changes in their laws to prevent takings for private use.

The Bush administration, backing the House bill, said in a statement that "private property rights are the bedrock of the nation's economy and enjoy constitutionally protected status. They should also receive an appropriate level of protection by the federal government."

The House bill would cut off for two years all federal economic development funds to states and localities that use economic development as a rationale for property seizures. It also would bar the federal government from using eminent domain powers for economic development.

"By subjecting all projects to penalties, we are removing a loophole that localities can exploit by playing a 'shell game' with projects," said Rep. Henry Bonilla, R-Texas, a chief sponsor.

The House, by a voice vote, approved Gingrey's proposal to bar states or localities in pursuit of more tax money from exercising eminent domain over nonprofit or tax-exempt religious organizations. Churches, he said, "should not have to fear because God does not pay enough in taxes."

Eminent domain, the right of government to take property for public use, is typically used for projects that benefit an entire community, such as highways, airports or schools.

Justice John Paul Stevens, who wrote the majority opinion in Kelo, said in an August speech that while he had concerns about the results, the ruling was legally correct because the high court has "always allowed local policy-makers wide latitude in determining how best to achieve legitimate public goals."

Several lawmakers who opposed the House bill said eminent domain has long been used by local governments for economic development projects such as the Inner Harbor in Baltimore and the cleaning up of Times Square in New York. The District of Columbia is expected to use eminent domain to secure land for a new baseball stadium for the Washington Nationals.

[albionmoonlight]

Though it will get lost in the shuffle, this proposed law is not against the Supreme Court decision. All the Supreme Court said was that this issue should be left to the people. And, it looks like the people are speaking.

(Whether this is a matter better decided by Congress or the state legislatures is a debate that we can leave for the reader).

[flere-imsaho]

1. Did you see the numbers for the House vote? That's not all right-wingers voting for this.

2. Kelo continues to confuse me. Consider this by John Paul Stevens:

Justice John Paul Stevens, who wrote the majority opinion in Kelo, said in an August speech that while he had concerns about the results, the ruling was legally correct because the high court has "always allowed local policy-makers wide latitude in determining how best to achieve legitimate public goals."

It seems to me that in Kelo the 5 moderate-to-liberal justices basically ruled on either a strict interpretation basis (the Constitution says you can take land, so you can take land) or on a States Rights (or local rights) basis (refer to Stevens' quote above). Either of these bases are traditional "right-of-center" viewpoints, right? And wouldn't the minority 4, by voting like they did, effectively be seeking to set limits from the bench, i.e. legislate from the bench?

Am I missing something here?

Of course, maybe I should read the dissent.

[albionmoonlight]

You are not wrong, Flere. The "legislate from the bench" / "activist judge" sound bites are just that--sound bites. They were more applicable to liberal judges in the Miranda and Brown days. Those days are long gone. Today, the "legislate from the bench" mantra is generally designed to give a perfectly valid opinion (I like Justices like Scalia and Thomas because they tend to reach results with which I agree) an intellectual justification that goes beyond results oriented reasoning.

Personally, I don't see why people in favor of Judges like Scalia feel a need to create an intellectual justification beyond "I like his decisions." By clinging to this "I am against legislators in black robes" reasoning in order to sound more intellectual, they are actually hurting their intellectual credibility by espousing something that just is false as a factual matter.

http://www.nytimes.com/2005/07/06/o...serland&emc=rss

Willingness of individual justices to overturn acts of congress since 1994:

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

[Warhammer]

Originally Posted by flere-imsaho

It seems to me that in Kelo the 5 moderate-to-liberal justices basically ruled on either a strict interpretation basis (the Constitution says you can take land, so you can take land) or on a States Rights (or local rights) basis (refer to Stevens' quote above). Either of these bases are traditional "right-of-center" viewpoints, right? And wouldn't the minority 4, by voting like they did, effectively be seeking to set limits from the bench, i.e. legislate from the bench?

Am I missing something here?

Of course, maybe I should read the dissent.

Your quote about the Constitution saying that you can take land is misleading. The Constitutions says you can take land for just compensation for public use. The issue is how "public use" was interpreted. What the left leaning judges did was define "public use" as giving land to a developer to increase tax revenue.

What those of us on the right are afraid of is a developer coming into an area of prime real estate and saying "I'll give you 10% of what this land is really worth. You don't accept? OK, I'll go to the gov't."

"Gov't, I can develop this area and increase the tax revenues from it tenfold!"

"Ok, we'll take it from them and turn it over to you!"

From what I understand, those leaning to the right said that defining "public use" in a manner in which it has never been used before is legislating from the bench.

For what it is worth, I think Stevens is saying that "public use" should be left to the states which I really disagree with. The rules for eminent domain should be uniform from state to state. Otherwise, one state would be able to take land for anything under the sun, while another state only takes the land for schools, and the like.

[SackAttack]

What surprises me isn't that "conservative" justices have overruled Congress since the Republicans took the House in '94, or that "liberal" justices have agreed.

It's how split down the middle it is. I would have expected some mixture just by random chance, rather than the five most frequent "overturn" votes coming from the "conservative" justices.

[John Galt]

Originally Posted by Warhammer

From what I understand, those leaning to the right said that defining "public use" in a manner in which it has never been used before is legislating from the bench.

If by "never" you mean "consistently for the last fifty years," then you would be correct.

edit: for those interested, Kelo just applied the precedent in Berman v. Parker in 1954. http://caselaw.lp.findlaw.com/script...l=348&invol=26. Berman was the basis for numerous urban development projects throughout the years and Kelo was the logical extension of those precedents. I don't agree with Kelo or Berman, but it is silly to say that Kelo was something totally out of left field by leftist/activist judges.

[albionmoonlight]

Originally Posted by Warhammer

Your quote about the Constitution saying that you can take land is misleading. The Constitutions says you can take land for just compensation for public use. The issue is how "public use" was interpreted. What the left leaning judges did was define "public use" as giving land to a developer to increase tax revenue.

What those of us on the right are afraid of is a developer coming into an area of prime real estate and saying "I'll give you 10% of what this land is really worth. You don't accept? OK, I'll go to the gov't."

"Gov't, I can develop this area and increase the tax revenues from it tenfold!"

"Ok, we'll take it from them and turn it over to you!"

From what I understand, those leaning to the right said that defining "public use" in a manner in which it has never been used before is legislating from the bench.

For what it is worth, I think Stevens is saying that "public use" should be left to the states which I really disagree with. The rules for eminent domain should be uniform from state to state. Otherwise, one state would be able to take land for anything under the sun, while another state only takes the land for schools, and the like.

No No No.

The WILL OF THE PEOPLE was to take the land. The landowners asked the Supreme Court to overrule the will of the people based a provision in the Constitution. The Supreme Court declined to read the Constitution to overrule the will of the people. That's Kelo, as much as people who don't like the result but claim to hate judicial activism wish that it were otherwise.

You then start to argue the merits of the Kelo issue as a policy matter. To the extent that you beleive that courts should choose to strike down laws based on whether they think that the laws are good policy--you really do want unbridled judicial activism. I don't think that you really beleive that. Courts are limited. They can only interpert the laws and constitution. They cannot fix them if they think that they are wrong.

[Flasch186]

to the point of my thread....The admin back this change and I agree.

[albionmoonlight]

Originally Posted by SackAttack

What surprises me isn't that "conservative" justices have overruled Congress since the Republicans took the House in '94, or that "liberal" justices have agreed.

It's how split down the middle it is. I would have expected some mixture just by random chance, rather than the five most frequent "overturn" votes coming from the "conservative" justices.

You are right to note that. One likely explanation skewing the data is that the Supreme Court gets to pick which cases it hears. Once you got a 5 Justice Majority who agreed on certain issues adverse to the interests of Congress, (in very simple form: they wanted to strike down acts of the federal Congress that they believed unduly burdened states' rights), they then chose to hear a disproportionate share of cases that raised those issues and strike down those laws.

The minority of four may have other issues with Congress that they would attack and overturn if they were a majority of 5--but as they are not a majority, those cases tend not to be heard.

[QuikSand]

Originally Posted by Warhammer

For what it is worth, I think Stevens is saying that "public use" should be left to the states which I really disagree with. The rules for eminent domain should be uniform from state to state. Otherwise, one state would be able to take land for anything under the sun, while another state only takes the land for schools, and the like.

That sounds like a very flat rejection of the entire concept of state's rights. (Which is fine by me, of course, if that's really where you are)

What would be the harm in there being different standards for condemnation (or really for public use/public benefit) in different states? A landowner in Connecticut isn't exactly subject to a condemnation action under the laws of California, right? It's not like there would be an untoward array of overlapping jurisdictions in any case (the sort of argument that is pretty compelling for uniformity in laws, rather than local control).

And it's not like these local laws just appear from thin air -- they are enacted by the elected representatives of the people. That's how our democracy works. Suggesting that whatever matter that you happen to be ticked off about today has to be pulled away from the democratic process smacks of selective application of these principles.

[ISiddiqui]

Contending that the Supreme Court has undermined a pillar of American society

WTF? The Supreme Court basically said this is a legislative issue (whether "public use" should apply is left to the legislative branch). How is that undermining anything?

Though in an amusing turn, it is interesting that the Republicans FOR the bill are arguing against states rights, while the Democrats AGAINST the bill are arguing for states rights . Of course I do realize that there are a LOT of Dems for the bill and some Reps against. Just amused me though.

[QuikSand]

For about 80-90% of the people who use the argument in political discourse, the phrase "state's rights" matters (and is engaged) only when it happens to support the position they have already decided to take.

[John Galt]

Originally Posted by albionmoonlight

You are right to note that. One likely explanation skewing the data is that the Supreme Court gets to pick which cases it hears. Once you got a 5 Justice Majority who agreed on certain issues adverse to the interests of Congress, (in very simple form: they wanted to strike down acts of the federal Congress that they believed unduly burdened states' rights), they then chose to hear a disproportionate share of cases that raised those issues and strike down those laws.

The minority of four may have other issues with Congress that they would attack and overturn if they were a majority of 5--but as they are not a majority, those cases tend not to be heard.

Just to point out one small wrinkle not mentioned in this post - it only takes 4 judges to issue cert. However, it is a gamble for the 4 judges to seek cert in a matter where they expect to be the minority. As a result, sometimes the 4 minority justices may not grant cert as a strategic choice.

[sachmo71]

lots of "quotes" in this thread.

[Mr. Wednesday]

While I think Congress's heart is in the right place, I wonder if they wouldn't be better off leaving this for the states to handle? I suppose, though, that their constituents are all over them about it, which would certainly make their action reasonable.

[Huckleberry]

WASHINGTON (AP) -- Contending that the Supreme Court has undermined a pillar of American society -- the sanctity of the home -- the House overwhelmingly approved a bill Thursday to block the court-approved seizure of private property for use by developers.

For the moment I will assume that this leading sentence is true and that such a contention was made by at least one member of Congress. In that case, I am absolutely embarrassed by the idiocy of our elected officials. The complete lack of understanding regarding the system that they, sadly, represent us in. The ignorance of the AP is not surprising.

The court's June decision, said House Judiciary Committee Chairman James Sensenbrenner, R-Wisconsin, changed established constitutional principles by holding that "any property may now be taken for the benefit of another private party."

Wrong. The local municipality held that.

The ruling in Kelo v. City of New London allowed the Connecticut city to exercise state eminent domain law to require several homeowners to cede their property for commercial use.

99.9% wrong. The ruling didn't so much allow it as it refused to bar the action.

With this "infamous" decision, said Rep. Phil Gingrey, R-Georgia, "homes and small businesses across the country have been placed in grave jeopardy and threatened by the government wrecking ball."

Wrong. Local governments across the country have jeopardized and threatened such entities with their wrecking ball. This decision didn't do it you dumbass.

The bill, said Chip Mellor, president of the Institute for Justice, which represented the Kelo homeowners before the Supreme Court, "highlights the fact that this nation's eminent domain and urban renewal laws need serious and substantial changes."

Hey. That's true. And there's nothing to disagree with there.

But opponents argued that the federal government should not be interceding in what should be a local issue. "We should not change federal law every time members of Congress disagree with the judgment of a locality when it uses eminent domain for the purpose of economic development," said Rep. Bobby Scott, D-Virginia.

Interesting. The D next to your name makes me think you don't hold this principle unilaterally, only selectively.

About half the states are also considering changes in their laws to prevent takings for private use.

Fantastic. That's the way it should be.

The House bill would cut off for two years all federal economic development funds to states and localities that use economic development as a rationale for property seizures. It also would bar the federal government from using eminent domain powers for economic development.

What's that? The federal legislature writing and passing laws affecting the federal government? Isn't that what's supposed to happen? I think these legislators are just bitter because the court told them to do their damn job.

[CamEdwards]

maybe i'm in the minority, but I don't associate overturning acts of congress as legislating from the bench. part of the job of the judiciary is to rule on the constitutionality of legislation passed by Congress.

[Huckleberry]

I agree with that 100%. But what was there to base striking down the law in Kelo on, Constitutionally speaking? It was a valid law passed and utilized by the locally elected government.

[panerd]

Originally Posted by Mr. Wednesday

While I think Congress's heart is in the right place, I wonder if they wouldn't be better off leaving this for the states to handle? I suppose, though, that their constituents are all over them about it, which would certainly make their action reasonable.

The gist I get is that one municipality won't get rid of it until the one next to them does. So the local government does nothing. So this takes the State stepping in. But one state won't get rid of it until the neighboring one does (i.e. All of these busniesses are going to want to move to East Saint Louis if Missouri changes it's laws and Illinois doesn't), so it takes Congress to get involved. Basically nobody has the balls to do anything so the federal governemnt has to. Then people will bitch about the feds being up in everyone's business. It's the same spineless circular logic that has gotten the feds involved with education. (And I am blaming the locals here, not the federal government.

[CamEdwards]

Originally Posted by Huckleberry

I agree with that 100%. But what was there to base striking down the law in Kelo on, Constitutionally speaking? It was a valid law passed and utilized by the locally elected government.

Not being a lawyer, I'm probably going to get schooled by JohnGalt here, but I would argue that the SC interpreted the taking clause of the 5th amendment to include takings for the "public good", which goes beyond takings for the "public use".

[Huckleberry]

Originally Posted by United States Constitution

Amendment V



No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

If we're going to intentionally use the most minimal definition of the word "use" then I think it's only fair to note that the 5th Amendment puts absolutely no limits on the taking of private property for private use. Likewise nowhere does the Constitution say that private property can not be taken for private use. So, technically, the Constitution does not even require property owners to be provided just compensation for their property unless it's taken for public use.

But interpreting it in that manner would be a really bad idea, of course. And I find no reasonable explanation to allow any other definition of "public use" than the definition used by the public itself. And the public defined it through their elected officials.

Personally I abhor eminent domain. But there's nothing in the Constitution preventing it or limiting its scope or definition. That's the local government and legislature's job.

[st.cronin]

This has to be the least surprising act of Congress following a Supreme Court ruling in my lifetime.

[Mr. Wednesday]

Originally Posted by panerd

The gist I get is that one municipality won't get rid of it until the one next to them does. So the local government does nothing. So this takes the State stepping in. But one state won't get rid of it until the neighboring one does (i.e. All of these busniesses are going to want to move to East Saint Louis if Missouri changes it's laws and Illinois doesn't), so it takes Congress to get involved.

Is that the case, though? We've barely had enough time for the state legislatures to react.

[-Mojo Jojo-]

Originally Posted by Mr. Wednesday

Is that the case, though? We've barely had enough time for the state legislatures to react.

Yeah, and it doesn't seem like they're sitting on their hands.

From the article:

Just five weeks after the U.S. Supreme Court upheld the use of eminent domain to seize private property for economic development, more than half of the states have introduced legislation to thwart potential abuses.

Since the June 23 ruling in Kelo v. City of New London, 125 S. Ct. 2655, lawmakers in 28 states have introduced more than 70 bills.

That article is three months old, and I can't find an update as to how many of those bills passed, or how many other states have introduced bills since then, but given the public reaction to Kelo, I'm guessing many of these bills passed.

[Fonzie]

Originally Posted by sachmo71

lots of "quotes" in this thread.

"I agree."

-Fonzie, 11/4/2005

[sterlingice]

Originally Posted by st.cronin

This has to be the least surprising act of Congress following a Supreme Court ruling in my lifetime.

I disagree. Sure, there's a lot of outrage but it's among a really small segment of the population. It's not a sexy campaign topic and if it doesn't get you votes or money, it rarely gets acted on by Congress.

SI

[st.cronin]

Originally Posted by sterlingice

Sure, there's a lot of outrage but it's among a really small segment of the population. SI

I'm curious what you mean by this, because everybody I know who follows current events (ie, votes) was outraged by the Supremes. I don't know anybody who thinks they were right.