[FoRK] "Foes in Congress unite in defense of property rights"

Joe Barrera joe
Mon Jul 4 22:14:18 PDT 2005

Unfortunately, the tool they plan to use -- withholding of Federal funds --
points out again what a joke "State's Rights" is in these times.

- Joe


  Carolyn Lochhead, Chronicle Washington Bureau
  Friday, July 1, 2005

    Washington -- House and Senate Republican leaders, backed by 
Democratic African American liberals, moved rapidly Thursday on 
legislation to blunt last week's Supreme Court decision allowing local 
governments to seize private property for economic development projects.

    Rep. Maxine Waters, a liberal Democrat from South Central Los 
Angeles, and Rep. Richard Pombo, a rock-ribbed conservative Republican 
from rural San Joaquin County -- who rarely join forces on any issue -- 
were among a group that introduced a bill to cut off federal funds for 
cities that use eminent domain for such projects.

    "Democrats and Republicans, conservatives and liberals are going to 
be organizing behind opposing the Supreme Court decision,'' Waters said. 
"It's like undermining motherhood and apple pie. I mean, people's homes 
and their land -- it's very important, and it should be protected by 
government, not taken for somebody else's private use."

    Pombo, a longtime property rights advocate, said anger at the 
court's 5-4 decision in a case from New London, Conn., had united rural 
landowners with suburbanites and city dwellers fearful that cities will 
eye their homes for hotels, malls or any commercial use they think will 
generate more tax revenue.

    The Supreme Court "is way out of line on this,'' Pombo said. 
"There's nothing in the Constitution that allows them to step in and 
take property away from an individual and give it to somebody else."

    The action in Congress comes just months after Republicans suffered 
intense criticism for trying to intervene in court decisions to remove 
life support for Terri Schiavo in Florida and as Capitol Hill readies 
for a clash over a potential Supreme Court vacancy.

    The case was brought by the libertarian Institute for Justice and 
pitted nine landowners in New London against the city's efforts to build 
a marina, office and retail space on waterfront property near a new $300 
million research facility built by pharmaceutical giant Pfizer Corp.

    The nine homeowners included Susette Kelo, who bought her home in 
1997, and Wilhelmina Dery, who has lived in her home since her birth in 

    The Fifth Amendment's eminent domain clause allows government to 
take private property for public use. Traditionally, this has meant land 
to build railroads, highways, schools and other public facilities. The 
government pays property owners a fair market price in exchange for the 

    The question before the court was whether economic redevelopment 
projects that convert private property to other private uses constitute 
a "public purpose."

    The court, led by Justice John Paul Stevens, concluded that it does, 
arguing that the justices should defer to the decisions of local 
governments rather than "crafting an artificial restriction on the 
concept of public use."

    Justice Sandra Day O'Connor dissented, joined by three conservative 
justices, saying the decision would allow condemnation of any property.

    "For who among us can say she already makes the most productive or 
attractive possible use of her property?" O'Connor argued. "Nothing is 
to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any 
home with a shopping mall, or any farm with a factory."

    In eight states, not including California, state high court rulings 
provide a higher level of property protection than the U.S. Supreme 
Court decision, said Dana Berliner, a lawyer with the Institute for Justice.

    The legislation introduced Thursday, backed by the chairman of the 
House Judiciary Committee, Rep. James Sensenbrenner, R-Wis., and its 
ranking Democrat, Rep. John Conyers of Michigan, would deprive cities of 
any federal funds for redevelopment projects that use the power of 
eminent domain.

    In a first step toward the legislation, the House voted 231-189 
Thursday in favor of an amendment to an appropriations bill that would 
bar the departments of Transportation, Treasury, and Housing and Urban 
Development from providing money to cities that use eminent domain for 
profit-making projects.

    Pombo said he has no worries about criticism that Congress is again 
trying to interfere with the judiciary, "because we're right on this. 
Honestly, I'd be shocked if anybody voted against this bill."

    Pombo noted that two prominent liberal organizations, the NAACP, a 
civil rights group, and AARP, a retiree group, sided with the property 

    "It doesn't take a genius to look at this and figure out who's going 
to be hurt by it," Pombo said. "It's not the big developers. It's not 
the wealthy. They have influence. They can stop the city council from 
taking their property. It's the poor guy who doesn't even know who his 
city councilman is that's going to be hurt."

    Pombo, of Tracy, won his seat in Congress and now chairs the House 
Natural Resources Committee in part because of his long crusade to 
protect landowners from alleged "regulatory takings" of their property 
through enforcement of such laws as the Endangered Species Act.

    The Kelo decision raises the stakes, he said.

    "This isn't about taking some farmer's ranch for endangered species 
habitat," Pombo said. "This is about taking your house because the city 
thinks it has a better use. This affects every homeowner in the country."

    House Democratic leader Nancy Pelosi of San Francisco opposes the 
bill and said Republicans are trying to interfere with the judiciary again.

    "This is in violation of the respect for separation of ... powers in 
our Constitution," Pelosi said.

    Pelosi was careful not to say she approved of the high court's 
ruling. But she said the decision has been made and will require a 
constitutional amendment to reverse.

    People for the American Way, which is leading liberal opposition to 
President Bush's judicial nominees, noted that the Kelo ruling is among 
several narrowly divided decisions that demonstrate the importance of 
the fight over any Supreme Court vacancy.

    Elliot Mincberg, the group's legal director, said the case had been 
brought by the Institute for Justice as part of an effort by 
conservatives to elevate property rights to the same level of civil 
rights such as freedom of speech and religion, in effect taking the 
nation back to the pre-New Deal days when the courts ruled child labor 
laws unconstitutional.

    Mincberg said the court had ruled that "legislatures should decide 
if a taking is for public use, and we shouldn't get to review it based 
on the vague wording of the Constitution."

    Waters countered that city councils are not a good place for such 

    "I am offended by the idea that a big, rich pharmaceutical company 
could get this kind of decision to build condominiums around a complex 
they built," Waters said. "I worry about these little cities and towns 
where big, wealthy developers can influence elected officials with large 
campaign contributions and undermine what public use and eminent domain 
was meant to be."

    Berliner, of the Institute for Justice, said poor areas were not the 
only ones targeted.

    "Developers want prime real estate, so that's what cities condemn," 
Berliner said. "That means waterfront property, property in the center 
of cities, property near transportation hubs, property in areas that are 
up and coming. All of those routinely get condemned for private 

    Page A - 1
    ?2005 San Francisco Chronicle

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