By Larry Jones
August 7, 2006

For months now, many have been expecting Senator Arlen Specter (PA) to introduce legislation to address concerns raised by the Supreme Court’s June 2005 decision in Kelo v. City of New London. According to a reliable Hill source, it is unlikely Specter will introduce legislation on eminent domain before members leave town for the August recess, which begins August 4 and runs through September 5.

Critics of the Supreme Court’s decision, which affirmed the city’s use of eminent domain to take private property for economic development, believe it has given state and local governments a freer hand to abuse their eminent domain powers. As a result, they believe local governments will be more eager to take owner-occupied property and turn it over to private developers as long as it’s done to generate jobs and increase state and local revenues. Many local officials disagree and are quick to point out they believe the Kelo case is the exception rather than the rule.

They do not believe local governments widely use eminent domain to condemn owner occupied property but in many instances to deal with vacant and abandon property and to alleviate blight. They also point out that every two to four years they are held accountable for their decisions when they must face the voters for reelection.

If a bill is introduced after the August recess, Specter, chair of the Senate Judiciary Committee having jurisdiction over the issue, will only have about four weeks to introduce his bill, move it through the approval process in committee and on the Senate floor, and negotiate a final compromise with the House. This may not be easy since Specter is expected to introduce a bill significantly different from the House version, which was approved last November. A crowded agenda may also present a problem considering the Senate would like to consider all 12 appropriations bills that fund federal agencies and programs, as well as immigration and a number of other high profile issues before the session ends on September 30.

Although Specter has not introduced a bill, the Senate Judiciary Committee staff has circulated a draft bill that aims to limit federal, state and local governments’ use of eminent domain to those uses recognized by the Supreme Court prior to the Kelo decision. It also seeks to ensure property owners asserting takings claims the same access to federal courts as plaintiffs asserting other constitutional violations. Although restrictive, the staff draft is significantly different from the House passed version (H.R. 4128), which prohibits the use of eminent domain for economic development even if it involves condemning property to alleviate of blight or developing affordable housing. All federal economic development funds will be withheld from state and local governments that violate this prohibition.

While the staff draft version would impose restrictions on local use of eminent domain for economic development, it would continue to allow state and local governments to use eminent domain to alleviate blighted conditions that are dangerous to public health and safety. However, the Conference is working with a coalition of mayors offices, including the Washington offices of Philadelphia Mayor John Street and New York City Mayor Michael Bloomberg, to urge Specter to allow more flexibility in his bill to address blight, to build affordable housing and redevelop inner-city neighborhoods. The Conference will strongly urge Specter to drop the provision in the bill that would give property owners with takings claims direct access to federal courts before such claims are dealt with at the local and state level.