I do not share Mr. Jones' belief that Congress can singlehandedly obviate the Kelo
decision with funding withholdings. What will happen, instead, is that the courts will be forced to figure out what in the world Congress means in its
vague formulation. And, of course, Congress being what it is, exemptions (this being law, not justice) will be the newest form of pork-trading, fundamentally returning us to the Kelo standard.
I wrote that the action taken by Congress will "hopefully" cripple Kelo takings. I don't think the courts will have to figure out anything if Congress refuses to fund certain projects. The power of the pursestrings is awesome and should be jealously guarded by those elected directly by the people.
That's fine, but that's not what the legislation does: it directs someone, probably the president, to withhold money from states that violate their standard of taking. Who applies the standard? You can be sure targetted states will challenge designations. Or will it be on a case by case basis, and the Supremes will have a field day with legislation targeting individual states for defunding, and any remnant of collegiality in Congress will shatter: either Democrat-heavy states will be first targetted, or Republicans will have to be willing to hurt their own to make a point... not bloody likely. No, Congress will "make a stand" which requires someone else to do the dirty work, and that someone will include the courts.
I'm a firm believer in the power of the purse; I've thought for years that Presidents, because of their staff resources, were way too powerful in the budget process. I also think that the budget process is in dire need of overhaul, but that's a discussion for another day.
Post a Comment