Maybe They Can Give It to Pfizer
Remind me again how a post-Kelo Congress was going to come to the rescue to prevent eminent domain abuses?
The United States House of Representatives voted 349 to 74 to acquire a monumental cross and the park around it from the City of San Diego. The 29-foot cross has been the target of a 17-year court battle between an atheist and the city, which owns the hilltop property where the monument stands. A federal judge ruled in May that the cross could not stand in the municipal park because it violated a state constitutional prohibition on the governmental endorsement of any one religion. That ruling is being appealed by the city. Representative Duncan Hunter, a Republican congressman from San Diego, said in floor debate that federal ownership would make the existing lawsuit moot.
No word on how the bill will fare in the Senate.
As background, that ultra-liberal, ultra-activist judge — Anthony Kennedy — granted an emergency injunction preventing the removal of the cross while litigation proceeds through the federal courts. A federal eminent domain condemnation would mean that the cross would be reviewed according to federal Establishment Clause jurisprudence rather than California law.
In other words, an activist Congress is trying to out-activist the “activist” judges that they profess to abhor. Go figure.
Incidentally: A “public-for-public” taking? How perverse is that? One wonders what might be next — “Gee, New York State, that’s a mighty fine state courthouse you have there — mind if we seize it via eminent domain and convert it into a federal courthouse?” And wouldn’t the more logical route be to go in the opposite direction and privatize the monument? No government involvement, no Establishment Clause problems — no harm, no foul.
Meanwhile, would a “Federal Mount Soledad Cross” survive a First Amendment challenge in a way that a “San Diego Mount Soledad Cross” could not? I have no idea. The case law these days is far too schizophrenic to say with any certainty. But that’s not my point.
This is: Politicians are politicians — whether federal, state or local — and eminent domain is too tempting a tool for them to use responsibly. The notion that Congress — or any other legislature — was going to “save us from Kelo” was a foolish fantasy.
(Via Jurist.)
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It seems strange to call this particular case a public taking. If you've got a *willing* seller, then how is that a "seizure" as opposed to an ordinary purchase? In this case, the City of San Diego is perfectly willing to sell the land to the feds. (Not that I think that will solve the issue at contention…)
The media reports do not indicate that; indeed they use the word "seize."
And besides, the federal law that is being invoked here is in fact an "eminent domain for parks and monuments" statute.
I haven’t kept close watch on this issue, but apparently attempts to sell the cross and property to private interests have been blocked by the courts.
The court has blocked one silly attempt where the city was going to sell the few square feet that the cross sits on to a private party, while keeping the rest of the property as a city park. I think that was rightly shot down as a sham sale.
Thanks Tom, thats sheds more light on the case, at least for me, since I was too lazy to look it up myself.