Posted 12:00 PM by Robert

Why So Modest?

Many bloggers have commented on Sen. Cornyn's federal bill (S. 1313, "The Protection of Homes, Small Businesses, and Private Property Act of 2005") that would bar a few "economic development" takings - those by the federal government and those by state and local governments that actually use federal funds. (WILLisms, SCOTUSblog, Coyote Blog, A Stitch in Haste and Out of Control, for example. The Volokyries oddly go on at considerable length abut Kelo, while contributing very little in the way of practical, remedial suggestions. Why is that so often the case?)

The Cornyn bill is obviously a very modest restriction on "economic development" takings. The restrictions on state and local governments contemplated by the bill would be easily avoided, since money is fungible. ("O, no, your honor, that federal dollar financed the purchase price of the concrete in the casino, not the purchase price of the home that used to stand there! It says so right here in the budget!") In fact, the bill looks more like silly grandstanding against an unpopular Court decision than a serious attempt to address that decision.

If Congress and Senator Cornyn are serious about reigning in Kelo, the obvious federal action would be to (1) bar all "economic development" eminent domain takings by the federal government and by any state or local government to the fullest extent Congress may do so pursuant to the commerce clause or the 14th amendment, as either is construed by the Supreme Court from time to time, (2) deny all federal highway (and perhaps other) funds to any state that does not itself bar such takings across the board (not just in highway construction).

As Coyote points out, the Court's dreadfully reasoned and written Raich decision would give such a federal law very wide sweep under the commerce clause - at least while that case remains law. But there is no need to hitch a Kelo rollback to Raich. Regardless of what happens to Wickard and its illegitimate progeny such as Raich, the power of Congress under the commerce clause to prohibit "economic development" takings is certainly a lot broader than the sweep of Senator Cornyn's proposal. Why not use the full, legitimate power of the Congress here?

It may be that conservatives such as Senator Cornyn are well intentioned, and don't want an expansive Raich-like construction of the commerce clause to be established in the public mind as the key to limiting Kelo. And conservatives often aren't too happy about the federalism considerations inherent in denying states federal money unless they take some explicit action themselves. Fine. But it is certainly possible to construct a bill that depends on the commerce clause (Kelo is, after all, mostly about economic development) with whatever narrower pre-Wickard construction of the commerce clause with which someone such as Senator Cornyn feels comfortable. And it would also be possible (for example) to deny federal funds to states who use federal funds to facilitate directly or indirectly "economic development" takings without violating federalism principles. Other variants - some obvious, some clever - are also possible.

Then there is the curious condition of the 14th amendment. The Supreme Court seemed to once suggest (in Katzenbach v. Morgan, to be exact) that Congress could (1) construe constitutional rights broadly through 14th Amendment legislation and (2) exercise its discretion as to what constituted appropriate legislation to enforce such 14th amendment rights. If that were the law now, Congress could presumably pass a bill under the 14th amendment expressing a broad construction of the "takings clause" and simply bar states and localities from "economic development takings."

But that all changed when the Court struck down the Religious Freedom Restoration Act of 1993 (RFRA) in City of Boerne v. Flores. Bourne had little use for Morgan: "There is language in our opinion in Katzenbach v. Morgan, 384 U.S. 641 (1966), which could be interpreted as acknowledging a power in Congress to enact legislation that expands the rights contained in §1 of the Fourteenth Amendment. This is not a necessary interpretation, however, or even the best one." Bourne held that the Court has the sole power of defining substantive rights under the Fourteenth Amendment (which would include defining the scope of the 5th amendment "takings clause" as applied against the states) and that RFRA did not have necessary "congruence and proportionality" with the substantive rights that the Court had defined. In other words, Bourne (1) ejected Congress from any role in defining substantive rights under the 14th Amendment and (2) seriously restricted Congress's discretion as to what constituted appropriate legislation to enforce 14th amendment rights.

But even Bourne allowed that "the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies" and that "preventive rules are sometimes appropriate remedial measures, [although] there must be a congruence between the means used and the ends to be achieved." So there seems to be at least some room for Congress to enact "preventative rules" protecting individuals from "economic development takings."

Of course, Congress can act - and has acted in the past - under its commerce clause and 14th amendment powers at the same time to protect civil rights. The 1964 Civil Rights Act is expressly based on both the 14th Amendment and the commerce clause, as can be seen in this provision from the Act: "Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action."

The Court upheld the "public accommodations" provisions under the Commerce Clause and the Necessary & Proper Clause - with Douglas saying that the Court should have cited to the 14th Amendment and Goldberg saying either the 14th Amendment or the Commerce Clause would do (I assume the Necessary & Proper Clause will also have to be cited in each case). Of course, the majority didn't hold that the 14th Amendment wasn't enough - only that the Commerce Clause was sufficient to support the Act's "public accommodation" provisions. This article pretty well spells out why even those who would like to limit the Commerce Clause to overturn cases like Wickard v Filburn (to which Heart of Atlanta cites) don't want to limit it so much that the Civil Rights Act would be threatened.

So why the heck is Senator Cornyn being so modest?