Property-rights case has Democrats torn

A recent Supreme Court decision that could dramatically expand the ability of the government to take private property prompted a clear and decisive rebuke from House Republicans, but Democrats have yet to form a cohesive position on the issue.

A House resolution expressing “grave disapproval” of the court’s decision in Kelo v. City of New London attracted the support of 144 Democrats and passed on a 365-33 vote Thursday night, with 18 members voting present and 17 failing to vote.

Democrats who voted in favor of the bill did so despite Minority Leader Nancy Pelosi’s (D-Calif.) early criticism of Republican efforts to take on the Supreme Court and minimize the effects of the ruling. Fifteen Democrats were among those voting present, while just 32 voted no. Pelosi did not vote, having left to make a flight, her spokesman said.

A large number of House Democrats apparently share the concerns of their Republican colleagues that Kelo will lead to inappropriate public seizure of private property, but the comments of Pelosi and others reflect the party’s antipathy toward recent GOP efforts to undermine several court decisions.

Republicans’ recent criticisms of court decisions have provided easy fodder for Democratic attacks, particularly the actions taken by the congressional leadership and the White House in the Terri Schiavo case.

Hammering Republicans on “abuse of power” in this arena and others has been a recurring theme in the Democrats’ message — and Pelosi did not miss an opportunity to lambaste Republican criticism of the courts before the votes on eminent domain Thursday.

“This [would be] in violation of the respect for separation of powers in our Constitution,” Pelosi said of proposals to withhold federal funding for enforcing the court’s decision. “The Supreme Court has decided … and so I would support that.”

Although Pelosi did not address the underlying issues of the court’s decision, a spokesman said yesterday that she shares some Democrats’ concerns about property rights and the rights of homeowners against seizure of their property. Pelosi, the spokesman said, is still considering how best to articulate those views with respect to the ruling.

But last Thursday, Pelosi said that a constitutional amendment might be needed if lawmakers want to alter the Kelo ruling.

“This is almost as if God has spoken,” she said. “It’s an elementary discussion now; they’ve made the decision.”

Despite the strong words, House Democratic leaders did not whip the caucus to vote against the resolution condemning the decision, sponsored by Rep. Phil Gingrey (R-Ga.), or language ultimately amended to the transportation-treasury spending bill that would prevent federal funds from being spent to enforce Kelo, according to Stacey Bernards, spokeswoman for Minority Whip Steny Hoyer (D-Md.).

During a floor speech offering support for the resolution, Hoyer complained that many Republicans “have unfairly — and intemperately — denounced the federal judiciary when they have disagreed with a court decision.” Hoyer voted in favor of the resolution but against the appropriations amendment, which was sponsored by Rep. Scott Garrett (R-N.J.).

Earlier on the floor, Appropriations Committee ranking member David Obey (D-Wis.) was more blunt: “If this amendment passes, you might as well tear up this Constitution and toss it in the ash basket.”

Although Obey — who voted for the Gingrey resolution — described the Kelo decision as “nutty” and “screwy,” he decried the Garrett amendment as part of a Republican strategy to interfere with the court system. “It follows in a long line of actions that I have seen coming from that side of the aisle since the beginning of the year,” he said, citing Schiavo among other examples.

Indeed, Majority Leader Tom DeLay (R-Texas) made it clear before the votes that congressional Republicans are serious about trying to rein in the courts. To DeLay, it is simply a matter of exercising the governmental checks and balances the Founding Fathers intended.

Proponents of restricting the court’s ruling are trying to “assert the responsibility and the authority of the Congress to be a check on the judiciary,” DeLay told reporters before the vote. “This Congress is not going to just sit by — sit idly by — and let an unaccountable judiciary make these kinds of decisions.”

One Democrat who voted with the Republican majority, Rep. Peter DeFazio (Ore.), said that any perceived uncertainty among members of his party could be explained by members’ reacting to an unexpected issue created by the court’s decision.

But Rep. Sheila Jackson Lee (D-Texas) suggested the lack of unanimity among Democrats reflects a tension between a respect for the “sanctity of courts” and concern about property rights. Jackson Lee is one of a number of Democratic co-sponsors of legislation that would limit the use of federal funds in any project at the state or local level that employs eminent domain as interpreted under Kelo. It was introduced Thursday by Judiciary Committee Chairman James Sensenbrenner (R-Wis.) and ranking member John Conyers (D-Mich.).

“The decision was begging for legislative action,” Jackson Lee said, explaining that the “severity of the ruling” and its potential impact on landowners trumps her belief that court decisions should not be questioned.

The Judiciary Committee will likely undertake a series of hearings that could serve to attract even more Democratic supporters — if the Republican leadership handles the process correctly — Jackson Lee suggested. If the bill can proceed through the committee without picking up extraneous amendments, Democrats will back it.