States Reject Expanded Eminent Domain Powers

Published October 1, 2005

Responding to a groundswell of public outrage following the June 23 decision by the U.S. Supreme Court expanding the eminent domain powers of state and local governments, Democrats and Republicans alike have spearheaded state legislation to prevent eminent domain abuses.

The Court in Kelo v. City of New London ruled for the first time that the “public use” requirement in the Takings Clause of the Fifth Amendment to the U.S. Constitution, limiting government’s eminent domain power, does not prohibit a state from taking property from one private citizen and directly transferring it to another. But the Court also emphasized that state and local governments may enact more stringent property rights protections if they choose to do so.

In response, “Already more than 30 states have proposed or initiated legislation to counter the Kelo decision and reign in eminent domain abuses,” said Institute for Justice Senior Attorney Scott Bullock, who argued the case before the Supreme Court. “A couple of states have already passed reform legislation, and many more are expected to once they return to session.”

Polls show strong public support for strengthening property rights against eminent domain. According to the August 4 Washington Times, a Quinnipiac University poll found 89 percent of voters in Connecticut want the state to limit eminent domain, and a University of New Hampshire poll found 93 percent of New Hampshire residents were opposed to the state taking property for private development.

Alabama Acts First

Alabama became the first state after the Kelo decision was delivered to pass legislation repudiating the powers granted by the U.S. Supreme Court. Gov. Bob Riley (R) on August 3 signed a bill prohibiting cities and counties in the state from taking private property for the purpose of enhancing tax revenue or transferring it to a third party.

“Once I sign this law,” Riley told bill supporters, “Alabamians can be assured they will have the strongest private property protections in America.”

A potential loophole in the legislation, however, enables local governments to take property that is found to be “blighted.”

“Alabama’s blight law is particularly prone to abuse and must be reformed,” warned Institute for Justice Senior Attorney Dana Berliner in an August 4 Greenwire story. “If legislators close the blight loophole, Alabama will be one of the best states in the country for protecting the rights of home and small business owners.”

Riley’s spokesperson, Jeff Emerson, told the August 4 Washington Times the governor would “like to talk to Berliner about this to see how it can be remedied.”

Berliner praised Alabama for being the first state to respond formally to the Supreme Court’s decision.

“Kudos to Alabama political leaders for taking the first step toward protecting their citizens from eminent domain abuse,” Berliner told the Washington Times.

“A property rights revolt is sweeping the nation, and Alabama is leading it,” said Riley.

Texans Show Bipartisan Support

In Texas, the state House and Senate overwhelmingly approved eminent domain legislation prior to the summer recess. The Senate bill passed by a vote of 23-6; the House version passed 132-0. Differences between the two bills could not be ironed out before the break, so the issue remained unresolved at presstime.

“This [Supreme Court] decision has shocked and alarmed property owners across the country,” explained Rep. Beverly Woolley (R-Houston) in the July 18 Houston Chronicle. “Ultimately, what the court decision said is, you are allowed to own property, pay your mortgage, pay your taxes, and you can keep your private property until someone offers to pay more taxes on that property.”

Upon returning to the state capitol in August, legislators immediately resumed work on eminent domain legislation. The House passed another eminent domain bill by a vote of 140-1, while the Senate passed its own version by a vote of 25-4. At presstime, the two bodies were attempting to reach agreement on the specific language of the final bill.

“The states have already made quite amazing efforts to reign in eminent domain abuse,” Bullock summarized. “We hope and expect that state and local governments will continue to create strong safeguards against unchecked confiscation of property. After all, the Supreme Court has placed it entirely in the hands of state and local governments to ensure that eminent domain is not abused for private profit.”

James Hoare ([email protected]) is managing attorney at the Syracuse, New York office of McGivney, Kluger & Gannon.

For more information …

More than two dozen documents on Kelo and eminent domain are available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to, click on the PolicyBot™ button, and select the topic/subtopic combination Law/Eminent Domain.