July 14, 2015

Property rights in America: Congress listens

By John M. Groen Executive Vice President and General Counsel
IMG_0051_John
PLF Principal Attorney, Chairman Bob Goodlatte & PLF DC Center Executive Director Todd Gaziano

On July 9, 2015, the House Subcommittee on the Constitution and Civil Justice heard testimony on Kelo v. City of New London, ten years after that infamous decision was rendered. But Chairman Bob Goodlatte and Rep. Trent Franks wanted to hear more than just the aftermath concerning Kelo style abuse of eminent domain. To recall, the Supreme Court in Kelo essentially wiped out the “public use” clause of the Fifth Amendment, thereby allowing government to condemn private property and transfer it to another private party. The Committee remains very concerned about eminent domain abuse authorized by Kelo, but recognizes that property rights are threatened in other ways too.

In a well attended hearing, the Congressmen discussed regulatory takings law and property rights in general. I testified and answered questions about the “relevant parcel” question, and the denial of access to federal courts created by the requirement that a takings claimant under the Fifth Amendment must first pursue compensation in state court, using state law procedures. A litigant in state court is then often denied any opportunity to subsequently present the federal constitutional claim to the federal court. Several committee members expressed concern that unlike any other federal constitutional right, Fifth Amendment takings claims are uniquely precluded from being filed in federal court.

I was impressed by the comments of Honorable Bob Goodlatte, Chair of the House Judiciary Committee. Congressman Goodlatte highlighted the principle of fairness and justice, quoting the Supreme Court in Armstrong v. United States, that the Fifth Amendment “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as whole.”

The hearing was punctuated by the paraphrase of the Supreme Court that property does not have rights, people have rights, and that a strong public desire to achieve the public good cannot be achieved by a shorter cut than the constitutional way of paying for the change.

Much work remains in the on-going effort to protect rights in property, but at least certain members of Congress are listening, and lending their efforts to the cause.

To view this hearing visit: http://1.usa.gov/1gsgNsb
Note: Hearing begins at the 50:01 mark.

To read my written testimony visit here and to view my statement after hearing visit here.

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