Well, Lookee That—Some Good News!

Conservative defenders of private property and liberal protectors of the poor joined in an overwhelming House vote to prevent local and state governments from seizing homes and businesses for use in economic development projects.

The House legislation, passed 376-38, was in response to a widely criticized 5-4 ruling by the Supreme Court last June that allowed eminent domain authority to be used to obtain land for tax revenue-generating commercial purposes. […]

The bill would withhold for two years all federal economic development funds from 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.

Whole thing here; link via BTF's Business of Baseball.

Comments

[Hakluyt]

Get this moronic statement:

Opponents of the legislation argued that its exclusion of economic development was too broad and 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-Va.

[Sandy]

Does anybody know if the various amendments to weaken it were defeated? My local idiot had one of the worst ones.

[kwais]

I wish the supreme court would just interpret the law correctly instead of having to ammend a badly interpreted law.

[Native NYer]

I can't get over that we need laws to protect us and our property from the constitution.

Is it just me?

[Dave W.]

I don't like it when the federal gov't forces states to do things by the threat of withholding funds. It seems unConstitutional. Did any of the Federalist papers or Kentucky Resolutions or anything like that ever discuss this problem of the fed gov't to use tax money as a carrot to expand its authority?

[JKP]

Just because a law or act is Constitutional doesn't mean that it's wise or effective.

[joe]

I wonder how this would effect a project to take land for a reservoir that would provide water for an industrial park?

It seems to me that targetting projects that have economic development as their purpose is likely to forbid projects the Congressmen meant to allow, while still allowing projects they wanted to forbid.

[Hakluyt]

joe,

Well, no law is perfect, as you keep on telling us. Oh, that's right, this is your balliwick, and it might impact whether you have a job or not.

[Dave W.]

In the bad news, there was a jury verdict today. As everybody knows privately, "jurors are a bunch of louts, nincompoops, and media whores who need to stop trusting their guts and start listening to people smarter than themselves. The future of the Lawsuit Nation may depend on it."

[MP]

I don't like it when the federal gov't forces states to do things by the threat of withholding funds. It seems unConstitutional.

I despise the practice, but I don't see anything unconstitutional in it.

[Alan Vanneman]

Why is it good news when the federal government tells states and localities what to do? Why is it that we make such a fetish of the U.S. Constitution, when to 99.9% of the population "constitutional" means "my side wins"?

[Hakluyt]

Alan Vanneman,

The Constitution is part of the national meme. We fight over it because the idea of it (along with a lot other things) keeps us a cohesive unit. That most people have never read the thing is beside the point.

Dave W.,

Good attorneys can fairly easily manipulate the emotions of jurors, and its well known that jurors tend to make up their minds fairly quickly - which is why opening statements are so important.

[Phil]

To echo DaveW., this is only "good news" to the extent that one approves of the carrot/stick method of governance, in which the Federal government confiscates a portion of your income in the form of taxes, then threatens to not give it back to you in the form of state/local development money unless you behave politically in a way they approve of.

If this was a news story about the Federal government threatening to withhold highway dollars unless states lowered their legal BAC limits to .05, we'd all (hopefully) be screaming bloody murder about it. It doesn't become a good tactic just because it reaches an end we might agree with.

[Hakluyt]

Dave W.,

Oh, and the voir dire process (which can in many states allow an attorney a great oppurtunity to influence the jury before the trial even starts).

[Hakluyt]

Phil,

That's a genetic fallacy though.

[Stephen Macklin]

Why not just start the process to amend the constitution so that event the SCOTUS can't misread it?

The right to ownership of property being the cornerstone of liberty, no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation.

Public use shall be understood to be property the government owns or retains the paramount interest in, and the public has a legal right to use. Public use shall be understood to include property the government owns and maintains as a secure facility. Public use shall not be construed to include economic development or increased tax revenue. Public use of such property shall be maintained for a period of not less than 25 years.

Just compensation shall be the higher of twice the average of the price paid for similar property in the preceding six months, or twice the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.

Sign on to the petition here.

[Phil]

Well, no, it isn't, Hakluyt. From where I sit, it is categorically wrong for the Federal government to levy taxes, then use that revenue as a cudgel to beat the states into behaving certain ways, no matter whether I agree with the ends or not.

[jeffiek]

I don't like it when the federal gov't forces states to do things by the threat of withholding funds. It seems unConstitutional.

It's not the withholding that's unconstitutional, although it's a dispicable practice. It's the availability of those funds in the first place that's unconstitutional.

[metalgrid]

Considering that a similar measure was defeated mainly by a large group of Dems, earlier, what changed in the deal for Dems for them to vote for it this time around?

[Hakluyt]

Phil,

Actually, it is. What you think of the act doesn't change that. Here I thought were all supposed to be getting pragmatic about things. 🙂

[Phil]

No, it's not, your ipse dixit notwith. 😛

Either this behavior from the Federal government is wrong, or it is not.

[Hakluyt]

Phil,

I'm differentiating the act itself from the result. You are trying to judge the result by the act.

[Phil]

Cheering a result you like achieved through a means you despise is the very picture of rank hypocrisy and unprincipledness.

[Hakluyt]

Phil,

Or its a matter of being pragmatic in a world where you know that worst nightmares exist. 🙂

[zach]

Phil's right, and either way, this has nothing to do with the genetic fallacy. He's not saying, "This is bad, because it comes from Congress". He's saying that Congress did something he doesn't approve of.

[Hakluyt]

zach,

He's saying its bad because of the way it came about; which is a type of genetic fallacy.

[zach]

No, it's not, because the end result is clearly distinguishable from his preferred result because of the way it came about, namely, a Federal law rather than state or local ones.

[Hakluyt]

zach,

And the merits of the result have nothing with the way it came about. The way it came about is neither a justification for or against the result itself. When you write something like "This only a victory for X" you are clearly equating the result with the process.

[Phil]

Pragmatism, shmagmatism. I'll all for utilitarian rule-making, but don't fool yourself; as someone I know once said, "What is practical depends entirely on what you are practicing." If you're going to make pragmatism your guiding principle, don't bitch when the rules change.

And the merits of the result have nothing with the way it came about.

Sure it does. If it doesn't, I don't ever want to hear you opposing "judges who legislate from the bench" or anything like that.

[zach]

Hak, of course I'm relating the result to the process in this case: A federal law passed by a national Congress, rather than state laws passed by state legislatures! The merits of the result have everything to do with the way it came about!

[zach]

The only way your logic works is if one comes from the position of not valuing federalism at all in the first place.

[Hakluyt]

Phil,

I don't make statements like that. I assume from the start that all judges legislate from the bench (I made myself clear on this point during the Alito squabbles).

Honestly, Lawrence was a pretty terrible decision from the standpoint of jurisprudence, but the result was good nonetheless. In the current system that is about the best you can hope for. As a rule utilitarian you can see how I come to this reasoning.

zach,

Thus you are committing a genetic fallacy.

[Hakluyt]

zach,

You are right. I am not a federalism fetishist and never have been.

[zach]

Thus you are committing a genetic fallacy.

Only if you don't make any distinction between state and federal laws! If you do, we're obviously talking about two theoretical end results: One in which the federal government places uniform restrictions on ED, and one in which different states enforce different restrictions.

Phil is only committing a genetic fallacy if one is to assume that the end result would be exactly the same were states writing their own laws, which of course is ridiculous.

[Hakluyt]

zach,

Both end results will curb ED use. Ergo, they are same.

[zach]

Both end results will curb ED use. Ergo, they are same.

But not to the same extent or under the same guidelines! And if you claim they will, you claim prescience to the actions of 50 independent legislatures. I find your logic to be very sound in most cases but your relating Phil's statements to genetic fallacy was clearly a mistake here. Your real point was the pragmatism argument anyway.

[Doug]

How is this any different from the laws that Congress passed to force the states to raise the drinking age and make seat belt use mandatory ?

Just because we like the result this time doesn't mean the method is acceptable.

[Phil]

If process doesn't matter and everything is simply results-oriented, no matter how you achieve it, I don't see where you get off criticizing, say, joe for his advocacy of certain executive agency rulemaking, or legislation like the ADA. If allowing the handicapped greater access to participate in public life is a laudable goal, who cares if it came about through individual property-owner initiatives or through a sweeping Federal law?

[jeffiek]

Hakluyt

They may be the same re ED use. They are not the same re the concentration of power.

[zach]

Exactly, and they wouldn't be the same re ED use, anyway.

[Hakluyt]

zach,

But not to the same extent or under the same guidelines!

Now you are comparing apples to apples. You weren't before. And those types of comparisons are fine.

Phil,

Because joe's ends are wrong and destructive, that's why.

Doug,

I am not a fan of the method itself, but I'll take a good result anyway.

[zach]

Now you are comparing apples to apples. You weren't before. And those types of comparisons are fine.

Haha... that's certainly a creative way of saying "you're right".

[Phil]

Because joe's ends are wrong and destructive, that's why.

Allowing handicapped people greater access to public life is wrong and destructive? Why?

I am not a fan of the method itself, but I'll take a good result anyway.

Thus, you are an unprincipled hypocrite.

[zach]

I don't think he's an unprincipled hypoctite, I just think he's got his ends and means all twisted up in this case.

[MP]

Thus, you are an unprincipled hypocrite.

Being politically astute does not make one a hypocrite. Do my votes for Community Block Development Grants make me a hypocrite because I'm also adamantly opposed to the Federal state? No, because I'm farther down the chain. If I was in Congress and voted for the monies in the first place, that would make me a hypocrite. Here, the chain starts with SCOTUS.

[Wintermute]

This moronic idiot does not like backdoor "preemptions" of state law through withholding of federal funds used for any purpose he can think of at the moment.

Moreover, being a moronic idiot lawyer and ex-real estate developer living on the edge of serious urban blight and having seen sizable chunks of that blight turning back into livable neighborhoods in part through this more modernly necessary extension of public purpose, I'd rather see these cases develop in the 50-state laboratory than see Congress lurch to enshrine today's politically correct view. These parcels can't always be assembled solely through negotiation with hundreds of owners.

Maybe being a card-carrying Libertarian way back in the day and attending conferences with the likes of Bob Poole taught me I wasn't going to stand on every plank someone else hammered into place.

[blammo]

Forgive me if I sound naive here, I'm not a constitutional scholar. But doesn't the fact that the Supreme Court ruled in Kelo Vs. New London that states or local government may constitutionally excercise eminent domain for economic development make this law ipso facto legally challengable by the states, and likely to be overturned in the Supreme Court?

It seems to me that barring new precedent, only states can pass laws governing barring the invocation of eminent domain from economic development.

[MP]

But doesn't the fact that the Supreme Court ruled in Kelo Vs. New London that states or local government may constitutionally excercise eminent domain for economic development make this law ipso facto legally challengable by the states, and likely to be overturned in the Supreme Court

No. SCOTUS only said they were allowed to do it, not that they had exclusive authority over such matters. And besides, the bill isn't saying they can't do it, it is just saying that if they do the gravy train will stop.

[zach]

Forgive me if I sound naive here, I'm not a constitutional scholar. But doesn't the fact that the Supreme Court ruled in Kelo Vs. New London that states or local government may constitutionally excercise eminent domain for economic development make this law ipso facto legally challengable by the states, and likely to be overturned in the Supreme Court?

I may be wrong of course, but I think the ruling simply meant that there was nothing already present in the Constitution denying them the ability to exercise ED in that way.

[Hakluyt]

blammo,

No. The Congress isn't keeping the states from undertaking anything. They just won't fund it. That's how the SCOTUS ruled in that Montana interstate funding case and that's how they would rule here too (if they were consistent).

[Phil]

And besides, the bill isn't saying they can't do it, it is just saying that if they do the gravy train will stop.

"Gravy train." Oh, brother. See, there's the problem; the money came from the citizens of the states in the first place, and I think most libertarians would agree that taxation and spending should remain as local as possible. But suddenly, when we get to a result we purport to like, returning money to the states becomes a "gravy train."

[joshua corning]

"I wonder how this would effect a project to take land for a reservoir that would provide water for an industrial park?"

This will just give more power for the owner to leverage against the government becouse the government will loose its condemnation power...ie the land will have to be bought for a higher price or they will have to find an alternative.

why this is a bad thing is beyond me...i guess it takes a mind like joe to see it as sinister.

[joe]

Well put, Wintermute.

However, keep in mind, projects that eliminate blight, promote neighborhood revitalization, or accomplish sundry other similar ends are still kosher.

This bill just puts the kibosh on takings done for economic development, alone. If there is an underlying problem with the area that the plan will remedy, this bill will have zero effect on the plan.

While it's tough to tell exactly what the ins and outs of the bill are (God, I hate the media's reporting on urban planning issues), my bet is that this bill will limit the really awful projects like New London and Lakewood, Ohio, without being too much trouble for the type of thing you're concerned about.

[Hakluyt]

Wintermute,

Care to give us some examples of these areas that have been "improved?"

[joe]

"This will just give more power for the owner to leverage against the government becouse the government will loose its condemnation power"

That's just it, joshua - I'm not sure it will. "For economic development" is a broad phrase. Highways are built to promote economic development. My question is, will the bill be interpretted to forbid the taking of land for the purpose of developing that land into more profitable uses, as in New London; or will it be interpretted to forbid the taking of land for any future use that is intended to promote economic development.

Could someone point to a planned bridge project and say, "You can't take my land for that bridge's abutments, because you're only building the bridge so they can build office parks on the other side of the river?" Where does economic development have to enter the project's purpose for the funds to be cut off?

[blammo]

Thanks for the response.

But wouldn't it be illegal, or at least challengable, to withold funding for a state that is is ruled as being constitutional?

You couldn't pass a bill in congress to selectively withold federal funding to, say, states that allow abortions to be performed? Could you?

Don't the states have some legal recourse if this bill is passed?

[Jason Ligon]

joe:

I think it is a case of economic development not being necessary and sufficient, but I admit I don't know that for sure.

[MP]

You couldn't pass a bill in congress to selectively withold federal funding to, say, states that allow abortions to be performed? Could you?

Sure you could.

[MP]

returning money to the states becomes a "gravy train."

Tell me a local/state politician that does look at Federal monies as a gravy train.

[Dave W.]

Where does economic development have to enter the project's purpose for the funds to be cut off?

Or, more likely, how many municipal, public trashcans need to be put in so that the new big box plaza is deemed to be an environmental and aesthetic project, rather than economic development?

[joe]

Ha! No, really, it's a public recreation project. See this thin little ribbon of green along the edge of the site plan? The one by the loading docks for the mall? It's a riverfront park. The mall? We just had to figure out something to do with the other 98% of the land.

[Apostate Jew]

Adapted (but not very well).

In the beginning was the plan.
And then came the assumptions.
And the assumptions were without form.
And the plan was without purpose.
But the planners and the developers came nigh unto each other and between them said, "Let us despoil the property owners so that we might give purpose unto our plan and by so doing appease the great god Scotus."

And darkness was upon the faces of the property owners. And they spoke among themselves saying, "It is a crock of shit and it stinks."

And the property owners went unto their town councillors and said, "It is a pail of dung and we cannot live with the smell." And the town councillors went unto the mayor saying, "It is a container of organic waste and it is very strong such that none may abide by it."

And the mayor went unto the legal advisors, saying, "It is a vessel of fertilizer and none may abide by it." And the legal advisors spoke among themselves, saying to one another, "It contains that which aids plant growth and it is very powerful."

And the legal advisors went to the mayor and the town councillors, saying unto them, "This new plan will actively promote the growth and vigor of the town with very powerful effects."

And the Mayor and the town councillors looked upon the plan and saw that it was good and they praised the planners and the developers.

And the plan became the law and the property owners were evicted and there was rejoicing amongst the planners and the developers.

And the great god Scotus was appeased.

[blammo]

MP

That's crazy then. I'm completely against this bill.

[JD]

MP - you meant doesn't look at Federal monies as a gravy train, right? I assume everyone is familiar with the definition of "block grant" as "a solid mass of money, surrounded by governors on all sides".

[Akira MacKenzie]

Good news? Good news? I've got a flat tire on the way to work, my office computer is giving me hell, AND THEIR GOING TO STOP MAKING VANILLA COKE!!!

I don't want to hear any good news!

[Wintermute]

joe, thank you.

haykluht, here's one: http://www.uptownmemphis.org/default.htm

I remember another one where there was a pocket of cheaply constructed old homes in the middle of a prime retail neighborhood, where developers went through a long process of acquiring title from each one of them through negotiation and paying acceptable prices.

While I don't want to see the hammer of eminent domain thrown in the dumpster, "just compensation" remains very important to me; and lawsuits to establish that are fine.

There is also a project to assemble land around the FedEx Forum to extend the redevelopment of that part of Downtown; and I just don't want to see a few crotchety or unreasonable (greedy) individuals stop a sorely needed process that is moreover open to public review (and litigation if necessary).

[MP]

MP - you meant doesn't look at Federal monies as a gravy train, right?

Right...typos are a bitch.

[bigbigslacker]

Forget the qualifiers, can't we just withhold federal development funds no matter what? 'sure is generous of the feds to give back some of the money they took from us, and to set conditions for its rightful return on top of it all (though I agree with the set of conditions in this case).

[bbs]

Opps, sorry, my point was already made at leasta couple times. (I usually read/skim most posts before blabbing aimlessly - and then I do it anyway)

[Hakluyt]

Akira,

Dude, you can make your own Vanilla Coke.

Wintermute,

Yes, anyone who just wants to continue to ooccupy their property is just automatically greedy, etc.

...stop a sorely needed process...

Every land grab is "sorely needed."

[speedwell]

Akira... psst... here's a site (I'm sure there are others) where you can get the authentic vanilla soda fountain syrup stuff you want:

http://www.prairiemoon.biz/symidi.html (sorry I'm too dumb to use HTML)

ON topic, I just don't get this eminent domain stuff at all. I mean, we oppose taxes, and that's just like eminent domain on our money, isn't it? Someone help me out here?

[James]

I favored the Kelo decision not because I believed that municipalities had the right to grab whatever they wanted (I'm going to be facing that monster myself in a few years, I am told) but because I simply didn't believe that we need the Supreme Court to protect us from our own local governments.

This is allegedly a democracy. The city council is the level of government that is closest to the citizenry; these are the politicians we see every day on the street. I find it appalling that we are running to the Feds to protect from a bunch of guys we can confront directly if we're willing to skip an episode of "Supernatural" on the first Tuesday of the month.

Consider what this new law means: before they can approve a development plan that involves eminent domain, the locals must either satisfy a court that their seizures are consistent with the new federal law or they must lobby Congress for an exemption. The latter is the more likely course, making Congress the gatekeeper for local development projects. Don't kid yourself that this will stop the ED process; it only means that the local developers will funnel money into Congressional campaigns to ensure that their projects get the green light from the All-Powerful.

Only one member of that body will even be able to find your particular suburb on a map and he will almost certainly be on the side of the person receiving the free (or merely subsidized) land. The rest won't really know and won't really care. They'll go along with whatever the local government wants. This is a bad law on many levels. It further concentrates power in DC at the expense of the other levels of governments, it puts oversight into the hands of people who really cannot be expected to know anything intelligent about the situation, and if it doesn't violate the letter of the constitution, it certainly violates the spirit of it.

Here's a radical idea: try organizing your neighbors against politicians who won't protect property rights instead of waiting for a bad project to get to the ED phase. The reason people tolerate legislating judges is because they're lazy. The Supreme Court made the right decision on Kelo, but that doesn't mean we simply have to live with it. They smacked the ball into our court and told us to deal with the local politicians ourselves. Letting Congress do our dirty work for us is a mistake we will regret...just like all the other times we let them "help" us.

[Hakluyt]

James,

You've probably just written the most interesting thing anyone ever has written about this subject on this blog. I'd shake your hand, but you know...

[Paul]

I wonder how this would effect a project to take land for a reservoir that would provide water for an industrial park?

Hopefully it will impact it significantly... SIGNIFICANTLY, I SAY AGAIN!

The taking of any private land for any reason should and must remain a cranky, red tape-filled, and nearly impossible task for the government. It should be so difficult, that only THE most important reasons, where life and limb are at stake, or the very future of our nation rides in the balance should suffice for a taking of property from private hands. Maybe not even then. I'll get back to you in a decade when I've pondered it...maybe. Urban planners should not wait by the phone for my answer. Go home, we'll call you, don't call us.

Paul

[Paul]

This is allegedly a democracy. The city council is the level of government that is closest to the citizenry; these are the politicians we see every day on the street. I find it appalling that we are running to the Feds to protect from a bunch of guys we can confront directly if we're willing to skip an episode of "Supernatural" on the first Tuesday of the month.

James, you've become horribly confused with constitutional rights and 'democracy'. The latter isn't supposed undo the former. Why this is so confusing to people, I know not. This is a Republic, not a pure democracy. Does it always work? No. It's the JOB of the feds to protect our constitutional rights. And read carefully: Congress didn't ban ED, they just said that if you do a taking, you lose our [my] federal dollars... so take away. take take take take take, just beware the consequences.

Paul

[joe]

Paul,

Your constitutional right is to be paid just compensation when the government ED's your land.

[Hakluyt]

joe,

The right includes a limitation based on particular conditions of course.

[smacky]

Akira... psst... here's a site (I'm sure there are others) where you can get the authentic vanilla soda fountain syrup stuff you want:

Akira,

Or you can take my suggestion and put some vanilla vodka in your regular coke. That way, you get to enjoy the vanilla flavor you covet so badly and get drunk at the same time! Kills two birds with one stone.