Is the answer to Kelo found in Raich?
In a comment to this post, "viciousmongoose" asks of the Supreme Court's holding in Kelo:
Do you think that Congress will write and pass a federal law outlawing these property thefts?
It's an excellent question and one for which I do not know the answer. I know only what I think Congress should do, to wit: pursuant to Gonzales v. Raich, Congress should pass a statute prohibiting intrastate takings for economic development as an exercise of its authority under the Commerce Clause. After all, if Congress can reach the intrastate cultivation and use of noncommercial marijuana, surely it can reach intrastate commercial transactions where, as here, the transactions pose a threat to a national market, namely housing.
Others have called for Congress to pass and submit to the states for ratification a constitutional amendment prohibiting takings for economic development. This, too, Congress should do. But it takes a lot less time to pass a federal statute than it does to enact a constitutional amendment. And as soon as the statute is on the books, Susette Kelo -- and the thousands of others in her situation -- can get into federal court and seek injunctive relief.
Perhaps I'm off base here, and I invite comment on this approach from the several lawyers who read this site. (As ya'll know, I'm not a lawyer.) But I believe the Raich Court's expansive understanding of the Commerce Clause makes my suggestion worth a shot. At a minimum, it raises an interesting federal question.
Meanwhile, for my fellow Texans, I have a good idea of not only what the Texas Legislature should do but also of what it will do:
Texas' cultural commitment to private property rights surfaced quickly Thursday as a state legislator moved to blunt the impact of a U.S. Supreme Court ruling that local governments may seize land for private development.Hours after the court's 5-4 ruling came down, Rep. Frank Corte Jr., R-San Antonio, said he would seek "to defend the rights of property owners in Texas" by proposing a state constitutional amendment limiting local powers of eminent domain, or condemnation.
Houston Mayor Bill White [D] and Harris County Judge Robert Eckels [R] offered assurances that the city and county do not intend to condemn land for private development projects.