The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Tuesday, the House of Representatives unanimously passed the Private Property Rights Protection Act, which would withhold, for two years, federal "economic development" funds to any state and local governments that use eminent domain to take property for private "economic development." The PRPA is a response to the Supreme Court's notorious 2005 decision in Kelo v. City of New London, which upheld the condemnation of homes for a private economic development project that eventually failed. The Kelo decision drew widespread public opposition across the political spectrum and resulted in numerous attemtps at legislative reform. The PRPA—co-sponsored by the unlikely coalition of very conservative Republican Jim Sensenbrenner (Wisconsin) and very liberal Democrat Maxine Waters (California) is one such effort.
However, celebration over its passage is premature. This is far from the first time that the PRPA has passed the House. Essentially the same law also got through the House in 2005, 2012, and 2014. Each time, it passed with overwhelming bipartisan support. And each time it nonetheless ended up failing in the Senate without even coming up for a vote. I discuss this history in a bit more detail in Chapter 5 of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, my book about the Kelo case and its aftermath. The same thing could easily happen this year, especially since the Senate has lots of other issues on its plate, and will soon be facing a midterm election, which is likely to take many members away from Washington to go on the campaign trail. Moreover, eminent domain reform is not getting as much public attention today as in the years soon after Kelo. The passage of the PRPA this year attracted considerably less media attention than the previous times it got through the House. That may make it easier for the Senate to bury it, should they be inclined to do so (as was the case in previous years).
Even if the PRPA does pass the Senate, there is a chance it could be vetoed by President Trump, who has a history of eminent domain abuse, and is a longstanding defender of the Kelo decision and economic development takings. But if the Senate majority is as lopsided as that in the House, his veto could well be overriden. In that scenario, Trump could well decide that a political fight over a veto is not worth the trouble.
When and if PRPA becomes law, it would probably have only a modest impact. As discussed in my book (pp. 160-61), it affects only a fairly narrow range of federal grants, and has some loopholes that clever jurisdictions could exploit. That said, a modest impact would still be an improvement over the status quo, and the bill would at least save some federal funds that would otherwise go to misbehaving state and local governments. The best should not be the enemy of the good. For that reason, I hope that this time Congress actually will enact the PRPA. But I am far from confident that will actually happen.
Whatever the fate of the PRPA, many valuable reform laws have passed at the state level since Kelo, and several state supreme courts have ruled that economic development takings are forbidden under their state constitutions. At the same time, much remains to be done to protect property rights in this field, since numerous states have either failed to enact any reform laws, or adopted cosmetic reforms that only pretend to address the problem.
I believe there is a good chance that the Supreme Court will either limit or overrule Kelo sometime in the short to medium term future. Despite Trump's support for the ruling, his first Supreme Court appointee—Neil Gorsuch—is a vehement critic of Kelo (a fact Trump may not have known at the time he decided to appoint him). We do not know whether Trump's latest appointee—Brett Kavanaugh—feels the same way. Justice Anthony Kennedy, whom Kavanaugh would replace if confirmed, was a key swing voter in the Court's narrow 5-4 majority in the Kelo case.
When and if the Court does revisit Kelo, it should consider the strong case for overruling it, from the standpoint of both originalism and living constitutionalism. The decision also has serious flaws that cut across conventional methodological disagreements over constitutional theory.
But property rights advocates should not wait for the Supreme Court to solve this problem. Rather, they should continue to work to strengthen protection for property rights on both legislative and judicial fronts. One of the lessons of the Kelo experience (as well as previous previous efforts to strengthen protection for constitutional rights) is that legislative and litigation-based strategies for reform are often mutually reinforcing, rather than mutually exclusive.
UPDATE: In the original version of this post, I accidentally stated that the PRPA passed the House in 2007, as well as 2005, 2012, and 2014. In reality, it failed to do so that year. It passed out of committee, but did not come to a vote of the full House. In the initial version of the post, I accidentally misstated what I had written in the relevant part of my book. I apologize for the error, which has now been corrected.