Congress Trying to Blunt Supreme Court’s Kelo Ruling

Congress working to blunt high court’s property seizure ruling (AP)

Lawmakers are trying to blunt a Supreme Court decision that says local governments can seize people’s homes to make way for shopping malls and other private development.

House Majority Leader Tom DeLay said Thursday the high court had made “a horrible decision” and he hoped it would cause a backlash. “The only silver lining to this decision is the possibility that this time the court has finally gone too far and that the American people are ready to reassert their constitutional authority,” said DeLay, R-Texas, a critic of recent court decisions.

While I agree with DeLay on the outrageous nature of these local government actions that the Court legitimated, it is outside Congress’ purview to regulate the use of eminent domain at the local level.

But Congress often finds a way to do things outside its constitutional scope. How? Money.

Legislation in the works would ban the use of federal funds for any project getting the go-ahead using the Kelo v. City of New London decision. “They’re going to have to find their own money, instead of coming to Washington,” said Rep. James Sensenbrenner, chairman of the House Judiciary Committee.

I’m not sure what percentage of takings cases would be impacted here, although one would think it small indeed.


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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. bryan says:

    Actually, the use of the purse-strings is within congress’ constitutional scope, as legitimated (as if it needed to be legitimated) by the SCOTUS in decisions on internet filtering in libraries and state drinking laws.

    And it’s perfectly legitimate for them to say to state and local governments that if they are going to make these types of land grabs, they’ll have to do it with local funds.

    Given what they could have tried to do legislatively on this issue, this seems like a very reasonable proposal.

  2. jim says:

    This is also what is commonly known as “checks and balances.” (I say that facetiously with a huge grin on my face) I’m glad there’s a response by the legislature since, in theory, they are representing the people and the people are clearly outraged at this ruling.

  3. yetanotherjohn says:

    What Cornyn is saying is not that states don’t have a right to use eminent domain to take private property from one private citizen and give it to another private citizen. He is just saying that the federal government won’t fund that.
    To put it another way, their is a first amendment right to publish pornography. But it is also congress’s right to say that federal funds can’t be used to fund the publishing of pornography.
    Now if you want to get into a federalism question about taking money from a state (through the citizens of that state), giving it to the fed and then the fed giving it back to the state, then you may have a case. But that is a lot larger than the question you raised.

    Also, you may want to check out Nancy Pelosi on this. It seems the supreme court is God (which raises all sorts of establishment of religion issues) and once they have spoken, it would be heresy to do anything that might diminish their Godhood.