U.S. Sens. John Cornyn (R-Texas) and Rand Paul (R-Ky.) introduced legislation today aimed at strengthening private property rights and limiting the government's power of eminent domain, which allows the seizure private property without the owner's consent.
The Protection of Homes, Small Businesses and Private Property Act of 2012 intentionally coincides with the seventh anniversary of the U.S. Supreme Court's decision in Kelo v. the City of New London in which the Court ruled that local governments could utilize eminent domain to confiscate private property at their discretion.
“The Kelo decision represented a vast expansion of government power of eminent domain—one that went too far. My legislation would limit that power and restore the basic protections of private property rights that our founders intended,” Cornyn said in a statement.
The bill argues that the "protection of homes, small businesses and other private property rights against government seizures and other unreasonable government interference is a fundamental principal and core commitment of our Nation's founders." It also cites the Fifth Amendment of the U.S. Constitution, which states eminent domain may only be used for only for "public use."
Taken directly from the Protection of Homes, Small Businesses and Private Property Act of 2012:
The Court’s decision in Kelo is alarming because, as Justice O’Connor accurately noted in her dissenting opinion, joined by the Chief Justice and Justices Scalia and Thomas, the Court has ‘‘effectively . . . delete[d] the words ‘for public use’ from the Takings Clause of the Fifth Amendment’’ and thereby ‘‘refuse[d] to enforce properly the Federal Constitution.
Under the Court’s decision in Kelo, Justice O’Connor warns, ‘‘The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz Carlton, any home with a shopping mall, or an farm with a factory.
The bill concludes with a challenge to lawmakers to restore the protections provided under the Fifth Amendment and protect private property owners from even the possibility of wrongful, unlawful property seizure.
“Property rights are the bulwark of a free society. If we allow our government to confiscate private property at will, then we will eventually lose our other constitutionally protected rights as well. I am proud to stand with Sen. Cornyn to introduce this legislation that will restore property rights to the American people," said Paul in a statement.
In the landmark property rights case, New London officials decided they needed Susette Kelo's land and the surrounding 90 acres for a multimillion-dollar private development that included residential, hotel conference, research and development space and a new state park that would compliment a new $350 million Pfizer pharmaceutical research facility.
Kelo and six other homeowners fought for years, all the way to the U.S. Supreme Court. In 2005, justices voted 5-4 against them, giving cities across the country the right to use eminent domain to take property for private development while also confirming the government's authority to take property from one person and give it to another if they believe it may promote economic development.
Ironically, weeds, glass, bricks, pieces of pipe and shingle splinters had replaced the knot of aging homes at the site of the nation's most notorious eminent domain project. Much of the property was reportedly still undeveloped as of late 2009.
If the prospect of the government using eminent domain to seize private property sounds absurd to you, consider this: they try it all the time, and sometimes succeed.
The Los Angeles Times reported on Wednesday:
San Bernardino County is pursuing a program that would use eminent domain to seize mortgages and restructure them for underwater homeowners stuck in their properties.
The aggressive plan, approved unanimously this week by the county Board of Supervisors, is titled the Homeownership Protection Program and partners the county with the cities of Ontario and Fontana. The program will use private funds from investors to acquire underwater mortgages – those that are worth less than the debt owed on them – and restructure them on behalf of homeowners in those cities.
David Wert, a spokesman for the county, said the program was still in its initial stages and details are not yet firm. Those details will be hashed out in public, he said.
“Under this particular proposal, the county would use its eminent domain authority to condemn the mortgages on negative equity properties and that way the county would take possession -- would be the owner of the mortgages,” Wert said. “The mortgages could then be renegotiated at a lower amount.”
It may sound like the government is coming to the aide of homeowners, but under the current program, the local county government would essentially become the bank, owning the mortgage on the properties. That isn't exactly the role any government entity should take on.
Other cities are reportedly considering similar measures.
WVIR in Charlottesville, Va. reported on Monday that Charlottesville City Council voted in favor of using eminent domain to seize a piece of land owned by a private company, Middle Mountian LLC, to be used for future construction and development.
The Kansas City Business Journal reported on June 8 that a Kansas City local government has filed a petition to assert eminent domain in Clay County Circuit Court. They want to condemn a Burger King and use the property it sits on for city redevelopment. The property owner is reportedly holding out and is not willing to give up his plot of land.
These instances are only very recent eminent domain cases. A simply Google search will turn up an abundance of other instances.
Obviously, not every case of eminent domain is a blatant violation of property rights as some property owners sometimes agree to give up their property, however, as shown in Kelo v. the City of London, it is certainly possible. The only remaining question is: do we want any government entity to have that type of power?
The Associated Press contributed to this report.