October 19, 2005


by PG

With Will Baude apparently occupied with matters other than Kelo-watching, I step in to pass along a note from my property professor, who lectured on the case (and Columbia's expansion plans for the Manhattanville neighborhood) today:

1. Apparently Congress just (today!) passed, as an appropriations rider, a ban on the use of eminent domain for the purpose of economic development by entities receiving federal funding. I can't find the exact wording or details yet.

2. Apropos of Columbia: It turns out that, under NY law, the use of eminent domain for Manhattanville would require a finding that the area is "blighted" w/in the meaning of Berman v. Parker (even though that is no longer req'd under the 5th Am.). That's the legal ground on which the battle may actually take place. So our "real case" may have been somewhat more hypothetical than I had thought.

A quick look at the Senate website turned up the bill, H.R.3058, which includes "(Sec. 949) Bars the use of funds made available in this Act to enforce the judgment of the U.S. Supreme Court in the case of Kelo v. New London, decided June 23, 2005, regarding the taking of private property by a local government for a public purpose (including commercial development)."

I'm actually not sure how funds would ever be used to "enforce the judgment of the U.S. Supreme Court" in a case like Kelo. I mean, it's not like the Court said that anyone was required to raze economically slumped areas, just that if cities wanted to do so, the Constitution wasn't going to stand in their way. My professor's assumption that Congress would pass something meaningful apparently was incorrect, as I can't discern anything in the language that would do that. In any case, the full text of the legislation that was reported in the Senate (H.R.3058.RS) shows that provision and many others as "struck out," so I can't tell what's going on.

October 19, 2005 08:44 PM | TrackBack

Perhaps the proposed statutory language is meant to bar the enforcement of a judgment entered on the basis of Kelo; i.e. barring the use of federally-derived funds to pay compensation for a taking made on the basis of a public purpose like that in Kelo (apparently presuming that the taking has been challenged in court and upheld, and apparently further presuming that denying funds to pay for a taking will prevent that taking from going forward). If so, it certainly is inartfully drafted.

Posted by: Tom T. at October 20, 2005 08:31 PM
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