This vote was on an amendment stipulating that during construction of the controversial Keystone XL pipeline, developers could acquire land only in ways consistent with constitutional protections of private property rights.

Sen. John Cornyn (R-TX) offered the amendment during consideration of a bill authorizing construction of the Keystone XL pipeline. Sen. Cornyn offered his amendment as a counterpoint to a separate proposal from Sen. Robert Menendez (D-NJ) that would outlaw the use of eminent domain during Keystone’s construction. Eminent domain is the power of the government to take private property – even if the owner does not agree to sell it – for a public purpose.

By contrast, Sen. Cornyn’s amendment would simply state that any acquisition of private land would have to be done “consistently with the Constitution.” The Supreme Court had famously but controversially approved the use of eminent domain in a wide range of situations – even for purposes of “economic development.”

Sen. Cornyn argued that Sen. Menendez was simply trying to undermine the entire bill by adding a “poison pill.” It would be enough to simply reaffirm Congress’ view that the Keystone XL pipeline must be built in a way that does not violate the Constitution’s protection of private property rights, he said.

“I think it is accurate to say that the distinguished senator from New Jersey is no fan of the Keystone XL pipeline, so he wants to add this provision to the bill to make it impossible, basically, to implement,” Sen. Cornyn said.

Sen. Menendez argued that Sen. Cornyn’s amendment was simply an attempt to provide political cover for those who wanted to allow the use of eminent domain to build a pipeline for a foreign company.

“This amendment seems innocuous, but it embraces the seizure of private property for private gain to the full extent of the Constitution,” Sen. Menendez said. “The founders of our country and its Constitution never envisioned having a company from another country come to the United States and use eminent domain to take the property of U.S. citizens for private purposes.”

The Senate approved Sen. Cornyn’s amendment by a vote of 64-33. Voting “yea” were 52 Republicans and 12 Democrats. Voting “nay” were 33 Democrats, including a majority of progressives. As a result, the Senate moved forward with a bill stipulating that during construction of the controversial Keystone XL pipeline, developers could acquire land only in ways consistent “with the Constitution.” However, senators declined to add a provision outlawing the use of eminent domain to build the pipeline.