The US House of Representatives [official website] approved legislation [HR 1443 text] on Tuesday restricting the ability of states to take control over private property for public use under eminent domain [Cornell LII backgrounder; JURIST news archive]. The Private Property Rights Protection Act of 2012 [materials] would effectively overturn the 2005 US Supreme Court [official website] decision in Kelo v. City of New London [text], authored by retired justice John Paul Stevens. The Kelo case drew sharp criticism, particularly from Republicans who believed the court disregarded the traditional standard for "public use." The proposed act would prevent states from seizing private property for the purpose of economic development and create a private cause of action for property owners. The act reads:
No State or political subdivision of a State shall exercise its power of eminent domain, or allow the exercise of such power by any person or entity to which such power has been delegated, over property to be used for economic development or over property that is used for economic development within 7 years after that exercise, if that State or political subdivision receives Federal economic development funds during any fiscal year in which the property is so used or intended to be used.The White House has remained silent regarding its position on the proposed legislation, and the Senate has yet to decide whether to consider the act.
The power of the government to take private property and convert it into public use is a doctrine long held. States can enact limitations on government takings to further citizen protections flowing from the Fifth Amendment. In November, Mississippi voters overwhelmingly approved an amendment to the state constitution limiting the power of eminent domain [JURIST report] in the state. The approved measure would prohibit, with certain exceptions, state and local government from conveying acquired private property to other persons or private businesses for a period of 10 years after acquisition. In 2010, voters in Nevada rejected a ballot initiative [JURIST report] that would have expanded state power by defining five exceptions to an existing general prohibition against exercising eminent domain to transfer property from one private party to another.