washingtonpost.com
Correction to This Article
A July 1 article about a House vote incorrectly characterized a recent Supreme Court ruling allowing local governments to force property owners to sell out and make way for private economic development. The ruling did not apply to government's power of eminent domain for slum clearance and land redistribution, which was covered by previous court decisions.
House Votes To Undercut High Court On Property
Federal Funds Tied To Eminent Domain

By Mike Allen and Charles Babington
Washington Post Staff Writers
Friday, July 1, 2005

The House voted yesterday to use the spending power of Congress to undermine a Supreme Court ruling allowing local governments to force the sale of private property for economic development purposes. Key members of the House and Senate vowed to take even broader steps soon.

Last week's 5 to 4 decision has drawn a swift and visceral backlash from an unusual coalition of conservatives concerned about property rights and liberals worried about the effect on poor people, whose property is often vulnerable to condemnation because it does not generate a lot of revenue.

The House measure, which passed 231 to 189, would deny federal funds to any city or state project that used eminent domain to force people to sell their property to make way for a profit-making project such as a hotel or mall. Historically, eminent domain has been used mainly for public purposes such as highways or airports.

The measure, an amendment to an appropriations bill, would apply to funds administered by the departments of Transportation, Treasury, and Housing and Urban Development. House Majority Leader Tom DeLay (R-Tex.) and Majority Whip Roy Blunt (R-Mo.) said they will push for a more inclusive measure that would apply to all federal funds.

A fact sheet said under the bill the locality or state would "lose any federal funds that would contribute in any way to the project the property would be taken for."

The vote marks the latest of several congressional moves to curb a judiciary that some lawmakers consider out of touch with average Americans. It came as conservative groups attacked a month-old bipartisan deal that ended Senate filibusters of several appellate court nominees and as some legislators anxiously watched for a possible Supreme Court retirement.

Activists said the 5 to 4 ruling will be a centerpiece of their efforts to motivate conservatives and libertarians for a confirmation fight after a vacancy opens on the court. "It's so bad, it's good," said Sean Rushton, executive director of the Committee for Justice, which works closely with the White House.

DeLay called it "a horrible decision" and said lawmakers' intervention is part of an effort to "assert the responsibility and the authority of the Congress to be a check on the judiciary."

"This Congress is not going to just sit by -- idly sit by -- and let an unaccountable judiciary make these kinds of decisions without taking our responsibility and our duty given to us by the Constitution to be a check on the judiciary," he said during a rare appearance in the House Radio-Television Gallery.

Sen. John Cornyn (R-Tex.) introduced a similar measure and immediately drew a Democratic co-sponsor, Sen. Bill Nelson (Fla.), as well as Sen. Rick Santorum (R-Pa.), who is number three in his party's leadership. The House bill is sponsored by Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.). Its Democratic co-sponsors include Reps. John Conyers Jr. (Mich.), Maxine Waters (Calif.) and Peter A. DeFazio (Ore.).

The conservative Family Research Council sent an e-mail urging followers to contact their lawmakers to support the legislation. The council said the decision "strips the rights of private citizens by granting the government power to seize your home and transfer it to a private developer."

House Minority Leader Nancy Pelosi (D-Calif.) criticized the measure. "When you withhold funds from enforcing a decision of the Supreme Court, you are in fact nullifying a decision of the Supreme Court," she told reporters. "This is in violation of the respect of separation of powers in our Constitution."

Sensenbrenner said last week's decision, Kelo v. City of New London , "has the potential of becoming the Dred Scott decision of the 21st century." He was referring to the 1857 ruling that affirmed slaves as private property, even when they had escaped to non-slave states.

Rhetoric was just as sharp at a gathering here of conservative activists urging the Senate to confirm U.S. appellate court nominee Henry W. Saad of Michigan. Victoria Toensing of the Committee for Justice accused Sen. Carl M. Levin (D-Mich.) of waging "a vendetta" against Saad, noting that the nominee is Arab American, as is his advocate, former senator Spencer Abraham (R-Mich.). Asked if she was suggesting that Levin's being Jewish had a role in his actions, Toensing replied: "I don't know. I know these are two Arab Americans, and you'll have to ask that of Senator Levin." Levin had no immediate response.

The Supreme Court ruling allows local governments to force property owners to sell and make way for private economic development when government officials decide it would benefit the public, even if the property is not blighted and the new project's success is not guaranteed. The ruling greatly broadened the types of projects for which the government may seize property to include not only bridges and highways but also slum clearance and land redistribution.

Opponents say property owners should not be forced to sell to make way for private commercial projects.

House Speaker J. Dennis Hastert (R-Ill.) praised the amendment, introduced by Rep. Scott Garrett (R-N.J.), as "an important first step" and said he is "extremely disappointed and surprised that the House Democratic leadership voted against this amendment."

Sensenbrenner said at the news conference with DeLay that federal money "will not be used to finance taking somebody's property from them to build a strip mall or a hotel or something simply because more tax revenue will come in as a result of an improvement." He said the decision "shows that the majority of the court had an utter disrespect for private property."

Blunt said, "Lots of members are hearing from the people they work for that this is an unacceptable intrusion."

In the roll call on the House amendment, 192 Republicans voted for and 31 against, with 39 Democrats voting for and 157 against. The lone independent, Rep. Bernie Sanders (Vt.), voted against. Maryland and Virginia lawmakers voted with their parties except Rep. C.A. Dutch Ruppersberger (D-Md.), who voted in favor, and Reps. Frank R. Wolf (R-Va.) and Thomas M. Davis III (R-Va.), who voted against.

© 2005 The Washington Post Company