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April 13, 2011

Congress considers bill restricting eminent domain for economic development; Institute for Justice backs bill, professor warns against it

Atlantic Yards Report

Will Congress reform eminent domain? Yesterday the House Judiciary Subcommittee on the Constitution held a hearing on H.R. 1433, the "Private Property Rights Protection Act," which would prohibit states or political subdivisions to exercise eminent domain (or allow such exercise) over property to be used for economic development.

It drew both strong support and harsh criticism from a split panel of witnesses.

This reprises a similar bill passed by the House of Representatives in reaction to the Supreme Court's controversial 2005 Kelo v. New London decision, which upheld eminent domain for economic development.

(The previous vote was 376-38, indicating bipartisan consensus; it's likely the Republican-dominated House would still support the bill, though perhaps without such consensus. The Senate, Democratic then and now, never voted.)

However, it would not have any effect on agencies pursuing eminent domain under the justification of blight removal, as in the state of New York.
...

Dana Berliner, Senior Attorney for the Institute of Justice, testified [PDF] that, after the Kelo decision, "the floodgates opened," as the rate of eminent domain abuse tripled. One of her five examples:

Last year, the New York Court of Appeals--the state's highest court--allowed the condemnation of perfectly fine homes and businesses for two separate projects. First, a new baksetball arena and residential and office towers in Brooklyn, and then for the expansion of Columbia University--an elite, private institution--into Harlem.

Note that the justification in both cases was blight, not economic development, though there's obviously conceptual overlap.

Berliner observed that, while some states have reformed their laws, "it remains a major problem in many other states," with New York the worst state in the country, "and it has gotten even worse since Kelo." (There's broad consensus on that.)

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Posted by eric at April 13, 2011 8:51 AM