19–006 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 112–401 

PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2012 

FEBRUARY 17, 2012.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. SMITH of Texas, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 1433] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 1433) to protect private property rights, having considered 

the same, reports favorably thereon with an amendment and recommends that the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 6 

Background and Need for the Legislation ............................................................. 6 

Hearings ................................................................................................................... 16 

Committee Consideration ........................................................................................ 16 

Committee Votes ...................................................................................................... 16 

Committee Oversight Findings ............................................................................... 18 

New Budget Authority and Tax Expenditures ...................................................... 18 

Congressional Budget Office Cost Estimate .......................................................... 18 

Performance Goals and Objectives ......................................................................... 20 

Advisory on Earmarks ............................................................................................. 20 

Section-by-Section Analysis .................................................................................... 20 

Dissenting Views ..................................................................................................... 25 


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The Amendment 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Private Property Rights Protection Act of 2012’’. 

SEC. 2. PROHIBITION ON EMINENT DOMAIN ABUSE BY STATES. 

(a) IN GENERAL.—No State or political subdivision of a State shall exercise its 

power of eminent domain, or allow the exercise of such power by any person or entity to which such power has been delegated, over property to be used for economic 

development or over property that is used for economic development within 7 years 

after that exercise, if that State or political subdivision receives Federal economic 

development funds during any fiscal year in which the property is so used or intended to be used. 

(b) INELIGIBILITY FOR FEDERAL FUNDS.—A violation of subsection (a) by a State 

or political subdivision shall render such State or political subdivision ineligible for 

any Federal economic development funds for a period of 2 fiscal years following a 

final judgment on the merits by a court of competent jurisdiction that such subsection has been violated, and any Federal agency charged with distributing those 

funds shall withhold them for such 2-year period, and any such funds distributed 

to such State or political subdivision shall be returned or reimbursed by such State 

or political subdivision to the appropriate Federal agency or authority of the Federal 

Government, or component thereof. 

(c) OPPORTUNITY TO CURE VIOLATION.—A State or political subdivision shall not 

be ineligible for any Federal economic development funds under subsection (b) if 

such State or political subdivision returns all real property the taking of which was 

found by a court of competent jurisdiction to have constituted a violation of subsection (a) and replaces any other property destroyed and repairs any other property 

damaged as a result of such violation. In addition, the State must pay applicable 

penalties and interest to reattain eligibility. 

SEC. 3. PROHIBITION ON EMINENT DOMAIN ABUSE BY THE FEDERAL GOVERNMENT. 

The Federal Government or any authority of the Federal Government shall not 

exercise its power of eminent domain to be used for economic development. 

SEC. 4. PRIVATE RIGHT OF ACTION. 

(a) CAUSE OF ACTION.—Any (1) owner of private property whose property is subject to eminent domain who suffers injury as a result of a violation of any provision 

of this Act with respect to that property, or (2) any tenant of property that is subject 

to eminent domain who suffers injury as a result of a violation of any provision of 

this Act with respect to that property, may bring an action to enforce any provision 

of this Act in the appropriate Federal or State court. A State shall not be immune 

under the 11th Amendment to the Constitution of the United States from any such 

action in a Federal or State court of competent jurisdiction. In such action, the defendant has the burden to show by clear and convincing evidence that the taking 

is not for economic development. Any such property owner or tenant may also seek 

an appropriate relief through a preliminary injunction or a temporary restraining 

order. 

(b) LIMITATION ON BRINGING ACTION.—An action brought by a property owner or 

tenant under this Act may be brought if the property is used for economic development following the conclusion of any condemnation proceedings condemning the 

property of such property owner or tenant, but shall not be brought later than seven 

years following the conclusion of any such proceedings. 

(c) ATTORNEYS’ FEE AND OTHER COSTS.—In any action or proceeding under this 

Act, the court shall allow a prevailing plaintiff a reasonable attorneys’ fee as part 

of the costs, and include expert fees as part of the attorneys’ fee. 

SEC. 5. REPORTING OF VIOLATIONS TO ATTORNEY GENERAL. 

(a) SUBMISSION OF REPORT TO ATTORNEY GENERAL.—Any (1) owner of private 

property whose property is subject to eminent domain who suffers injury as a result 

of a violation of any provision of this Act with respect to that property, or (2) any 

tenant of property that is subject to eminent domain who suffers injury as a result 

of a violation of any provision of this Act with respect to that property, may report 

a violation by the Federal Government, any authority of the Federal Government, 

State, or political subdivision of a State to the Attorney General. 

(b) INVESTIGATION BY ATTORNEY GENERAL.—Upon receiving a report of an alleged 

violation, the Attorney General shall conduct an investigation to determine whether 

a violation exists. 


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(c) NOTIFICATION OF VIOLATION.—If the Attorney General concludes that a violation does exist, then the Attorney General shall notify the Federal Government, authority of the Federal Government, State, or political subdivision of a State that the 

Attorney General has determined that it is in violation of the Act. The notification 

shall further provide that the Federal Government, State, or political subdivision of 

a State has 90 days from the date of the notification to demonstrate to the Attorney 

General either that (1) it is not in violation of the Act or (2) that it has cured its 

violation by returning all real property the taking of which the Attorney General 

finds to have constituted a violation of the Act and replacing any other property destroyed and repairing any other property damaged as a result of such violation. 

(d) ATTORNEY GENERAL’S BRINGING OF ACTION TO ENFORCE ACT.—If, at the end 

of the 90-day period described in subsection (c), the Attorney General determines 

that the Federal Government, authority of the Federal Government, State, or political subdivision of a State is still violating the Act or has not cured its violation as 

described in subsection (c), then the Attorney General will bring an action to enforce 

the Act unless the property owner or tenant who reported the violation has already 

brought an action to enforce the Act. In such a case, the Attorney General shall intervene if it determines that intervention is necessary in order to enforce the Act. 

The Attorney General may file its lawsuit to enforce the Act in the appropriate Federal or State court. A State shall not be immune under the 11th Amendment to the 

Constitution of the United States from any such action in a Federal or State court 

of competent jurisdiction. In such action, the defendant has the burden to show by 

clear and convincing evidence that the taking is not for economic development. The 

Attorney General may seek any appropriate relief through a preliminary injunction 

or a temporary restraining order. 

(e) LIMITATION ON BRINGING ACTION.—An action brought by the Attorney General 

under this Act may be brought if the property is used for economic development following the conclusion of any condemnation proceedings condemning the property of 

an owner or tenant who reports a violation of the Act to the Attorney General, but 

shall not be brought later than seven years following the conclusion of any such proceedings. 

(f) ATTORNEYS’ FEE AND OTHER COSTS.—In any action or proceeding under this 

Act brought by the Attorney General, the court shall, if the Attorney General is a 

prevailing plaintiff, award the Attorney General a reasonable attorneys’ fee as part 

of the costs, and include expert fees as part of the attorneys’ fee. 

SEC. 6. NOTIFICATION BY ATTORNEY GENERAL. 

(a) NOTIFICATION TO STATES AND POLITICAL SUBDIVISIONS.— 

(1) Not later than 30 days after the enactment of this Act, the Attorney General shall provide to the chief executive officer of each State the text of this Act 

and a description of the rights of property owners and tenants under this Act. 

(2) Not later than 120 days after the enactment of this Act, the Attorney General shall compile a list of the Federal laws under which Federal economic development funds are distributed. The Attorney General shall compile annual revisions of such list as necessary. Such list and any successive revisions of such 

list shall be communicated by the Attorney General to the chief executive officer 

of each State and also made available on the Internet website maintained by 

the United States Department of Justice for use by the public and by the authorities in each State and political subdivisions of each State empowered to 

take private property and convert it to public use subject to just compensation 

for the taking. 

(b) NOTIFICATION TO PROPERTY OWNERS AND TENANTS.—Not later than 30 days 

after the enactment of this Act, the Attorney General shall publish in the Federal 

Register and make available on the Internet website maintained by the United 

States Department of Justice a notice containing the text of this Act and a description of the rights of property owners and tenants under this Act. 

SEC. 7. REPORTS. 

(a) BY ATTORNEY GENERAL.—Not later than 1 year after the date of enactment 

of this Act, and every subsequent year thereafter, the Attorney General shall transmit a report identifying States or political subdivisions that have used eminent domain in violation of this Act to the Chairman and Ranking Member of the Committee on the Judiciary of the House of Representatives and to the Chairman and 

Ranking Member of the Committee on the Judiciary of the Senate. The report 

shall— 

(1) identify all private rights of action brought as a result of a State’s or political subdivision’s violation of this Act; 

(2) identify all violations reported by property owners and tenants under section 5(c) of this Act; 


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(3) identify the percentage of minority residents compared to the surrounding 

nonminority residents and the median incomes of those impacted by a violation 

of this Act; 

(4) identify all lawsuits brought by the Attorney General under section 5(d) 

of this Act; 

(5) identify all States or political subdivisions that have lost Federal economic 

development funds as a result of a violation of this Act, as well as describe the 

type and amount of Federal economic development funds lost in each State or 

political subdivision and the Agency that is responsible for withholding such 

funds; and 

(6) discuss all instances in which a State or political subdivision has cured 

a violation as described in section 2(c) of this Act. 

(b) DUTY OF STATES.—Each State and local authority that is subject to a private 

right of action under this Act shall have the duty to report to the Attorney General 

such information with respect to such State and local authorities as the Attorney 

General needs to make the report required under subsection (a). 

SEC. 8. SENSE OF CONGRESS REGARDING RURAL AMERICA. 

(a) FINDINGS.—The Congress finds the following: 

(1) The founders realized the fundamental importance of property rights when 

they codified the Takings Clause of the Fifth Amendment to the Constitution, 

which requires that private property shall not be taken ‘‘for public use, without 

just compensation’’. 

(2) Rural lands are unique in that they are not traditionally considered high 

tax revenue-generating properties for State and local governments. In addition, 

farmland and forest land owners need to have long-term certainty regarding 

their property rights in order to make the investment decisions to commit land 

to these uses. 

(3) Ownership rights in rural land are fundamental building blocks for our 

Nation’s agriculture industry, which continues to be one of the most important 

economic sectors of our economy. 

(4) In the wake of the Supreme Court’s decision in Kelo v. City of New London, abuse of eminent domain is a threat to the property rights of all private 

property owners, including rural land owners. 

(b) SENSE OF CONGRESS.—It is the sense of Congress that the use of eminent domain for the purpose of economic development is a threat to agricultural and other 

property in rural America and that the Congress should protect the property rights 

of Americans, including those who reside in rural areas. Property rights are central 

to liberty in this country and to our economy. The use of eminent domain to take 

farmland and other rural property for economic development threatens liberty, rural 

economies, and the economy of the United States. The taking of farmland and rural 

property will have a direct impact on existing irrigation and reclamation projects. 

Furthermore, the use of eminent domain to take rural private property for private 

commercial uses will force increasing numbers of activities from private property 

onto this Nation’s public lands, including its National forests, National parks and 

wildlife refuges. This increase can overburden the infrastructure of these lands, reducing the enjoyment of such lands for all citizens. Americans should not have to 

fear the government’s taking their homes, farms, or businesses to give to other persons. Governments should not abuse the power of eminent domain to force rural 

property owners from their land in order to develop rural land into industrial and 

commercial property. Congress has a duty to protect the property rights of rural 

Americans in the face of eminent domain abuse. 

SEC. 9. DEFINITIONS. 

In this Act the following definitions apply: 

(1) ECONOMIC DEVELOPMENT.—The term ‘‘economic development’’ means taking private property, without the consent of the owner, and conveying or leasing 

such property from one private person or entity to another private person or entity for commercial enterprise carried on for profit, or to increase tax revenue, 

tax base, employment, or general economic health, except that such term shall 

not include— 

(A) conveying private property— 

(i) to public ownership, such as for a road, hospital, airport, or military base; 

(ii) to an entity, such as a common carrier, that makes the property 

available to the general public as of right, such as a railroad or public 

facility; 

(iii) for use as a road or other right of way or means, open to the public for transportation, whether free or by toll; and 


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(iv) for use as an aqueduct, flood control facility, pipeline, or similar 

use; 

(B) removing harmful uses of land provided such uses constitute an immediate threat to public health and safety; 

(C) leasing property to a private person or entity that occupies an incidental part of public property or a public facility, such as a retail establishment on the ground floor of a public building; 

(D) acquiring abandoned property; 

(E) clearing defective chains of title; 

(F) taking private property for use by a public utility; and 

(G) redeveloping of a brownfield site as defined in the Small Business Liability Relief and Brownfields Revitalization Act (42 U.S.C. 9601(39)). 

(2) FEDERAL ECONOMIC DEVELOPMENT FUNDS.—The term ‘‘Federal economic 

development funds’’ means any Federal funds distributed to or through States 

or political subdivisions of States under Federal laws designed to improve or increase the size of the economies of States or political subdivisions of States. 

(3) STATE.—The term ‘‘State’’ means each of the several States, the District 

of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States. 

SEC. 10. SEVERABILITY AND EFFECTIVE DATE. 

(a) SEVERABILITY.—The provisions of this Act are severable. If any provision of 

this Act, or any application thereof, is found unconstitutional, that finding shall not 

affect any provision or application of the Act not so adjudicated. 

(b) EFFECTIVE DATE.—This Act shall take effect upon the first day of the first fiscal year that begins after the date of the enactment of this Act, but shall not apply 

to any project for which condemnation proceedings have been initiated prior to the 

date of enactment. 

SEC. 11. SENSE OF CONGRESS. 

It is the policy of the United States to encourage, support, and promote the private ownership of property and to ensure that the constitutional and other legal 

rights of private property owners are protected by the Federal Government. 

SEC. 12. BROAD CONSTRUCTION. 

This Act shall be construed in favor of a broad protection of private property 

rights, to the maximum extent permitted by the terms of this Act and the Constitution. 

SEC. 13. LIMITATION ON STATUTORY CONSTRUCTION. 

Nothing in this Act may be construed to supersede, limit, or otherwise affect any 

provision of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.). 

SEC. 14. RELIGIOUS AND NONPROFIT ORGANIZATIONS. 

(a) PROHIBITION ON STATES.—No State or political subdivision of a State shall exercise its power of eminent domain, or allow the exercise of such power by any person or entity to which such power has been delegated, over property of a religious 

or other nonprofit organization by reason of the nonprofit or tax-exempt status of 

such organization, or any quality related thereto if that State or political subdivision 

receives Federal economic development funds during any fiscal year in which it does 

so. 

(b) INELIGIBILITY FOR FEDERAL FUNDS.—A violation of subsection (a) by a State 

or political subdivision shall render such State or political subdivision ineligible for 

any Federal economic development funds for a period of 2 fiscal years following a 

final judgment on the merits by a court of competent jurisdiction that such subsection has been violated, and any Federal agency charged with distributing those 

funds shall withhold them for such 2-year period, and any such funds distributed 

to such State or political subdivision shall be returned or reimbursed by such State 

or political subdivision to the appropriate Federal agency or authority of the Federal 

Government, or component thereof. 

(c) PROHIBITION ON FEDERAL GOVERNMENT.—The Federal Government or any authority of the Federal Government shall not exercise its power of eminent domain 

over property of a religious or other nonprofit organization by reason of the nonprofit or tax-exempt status of such organization, or any quality related thereto. 

SEC. 15. REPORT BY FEDERAL AGENCIES ON REGULATIONS AND PROCEDURES RELATING TO 

EMINENT DOMAIN. 

Not later than 180 days after the date of the enactment of this Act, the head of 

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1 545 U.S. 469 (2005). 

2 Additionally, as the Takings Clause is a prohibition, not an express grant of power, the use 

of eminent domain is further restricted by other limits on government power. For instance, the 

Federal Government may only exercise its power of eminent domain if it is necessary and proper 

for the execution of one of its enumerated powers. United States v. Morrison, 529 U.S. 598, 607 

(2000) (‘‘Every law enacted by Congress must be based on one or more of its powers enumerated 

in the Constitution.’’). 3 Kelo, 545 U.S. at 497 (O’Connor, J., dissenting) (quoting Monongahela Nav. Co. v. United 

States, 148 U.S. 312, 325 (1893)). 4 Id. 

cedures and report to the Attorney General on the activities of that department or 

agency to bring its rules, regulations and procedures into compliance with this Act. 

SEC. 16. SENSE OF CONGRESS. 

It is the sense of Congress that any and all precautions shall be taken by the government to avoid the unfair or unreasonable taking of property away from survivors 

of Hurricane Katrina who own, were bequeathed, or assigned such property, for economic development purposes or for the private use of others. 

SEC. 17. DISPROPORTIONATE IMPACT ON MINORITIES. 

If the court determines that a violation of this Act has occurred, and that the violation has a disproportionately high impact on the poor or minorities, the Attorney 

General shall use reasonable efforts to locate and inform former owners and tenants 

of the violation and any remedies they may have. 

Purpose and Summary 

The Private Property Rights Protection Act prohibits state and 

local governments that receive Federal economic development 

funds from using eminent domain to transfer private property from 

one private owner to another for the purpose of economic development. Specifically, if a state or political subdivision of a state uses 

its eminent domain power to transfer private property to other private parties for economic development, the state is ineligible to receive Federal economic development funds for 2 fiscal years following a judicial determination that the law has been violated. Additionally, the bill prohibits the Federal Government from using 

eminent domain for economic development purposes. Thus, the bill 

preserves the constitutional protections for private property jeopardized by the Supreme Court’s decision in Kelo v. City of New 

London. 1

Background and Need for the Legislation 

The Fifth Amendment to the U.S. Constitution, made applicable 

to the states through the 14th Amendment, provides that ‘‘private 

property [shall not] be taken for public use, without just compensation.’’ 2 In other words, the Fifth Amendment imposes two distinct 

conditions on the exercise of the power of eminent domain: (1) that 

the taking must be for ‘‘public use,’’ and (2) that the owner must 

be paid ‘‘just compensation.’’ As Justice O’Connor has explained, although the Takings Clause presumes that governments are given 

the authority to take property without an owner’s consent, ‘‘the just 

compensation requirement spreads the cost of condemnations and 

thus ‘prevents the public from loading upon one individual more 

than his just share of the burdens of government.’’’ 3 And, ‘‘the public use requirement, in turn, imposes a more basic limitation, circumscribing the very scope of the eminent domain power: Government may compel an individual to forfeit her property for the 

public’s use, but not for the benefit of another private person.’’ 4


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5 Id. at 494. 6 H.R. 4128, 109th Cong. 

7 James W. Ely, Jr., ‘‘‘Poor Relation’ Once More: The Supreme Court and the Vanishing Rights 

of Property Owners,’’ 2005 CATO Sup. Ct. Rev. 39, 40 (2005). 8 John Locke, Second Treatise § 124 (emphasis added). 9 Ely, supra note 7, at 40. 10 1 The Records of the Federal Convention of 1787 at 147 (Max Farrand ed., 1937). 11The Federalist No. 54 (James Madison); see also James Madison, ‘‘Speech in the Virginia 

Constitutional Convention,’’ reprinted in James Madison: Writings 824 (Jack N. Rakove ed., 

1999) (‘‘[T]he rights of persons, and the rights of property are the objects, for the protection of 

which Government was instituted. These rights cannot well be separated.’’). 12 James Madison, Property (1792), reprinted in James Madison:Writings 515 (Jack N. Rakove 

ed., 1999). 

Unfortunately, the Kelo decision effectively ‘‘delete[d] the words 

‘for public use’ from the Takings Clause of the Fifth Amendment’’ 5

and thereby jeopardized the property rights of all Americans. The 

decision has been resoundingly criticized from all quarters. Indeed, 

in the wake of the Kelo decision, a resolution, H. Res. 340, expressing grave disapproval of the decision, was approved by the House 

of Representatives on June 30, 2005, by a vote of 365–33. Additionally, on November 3, 2005, 157 Democrats joined 218 of their Republican colleagues in the House to pass the Private Property 

Rights Protection Act,6 by a 376 to 38 vote margin. Regrettably, the 

bill was not considered in the Senate. H.R. 1433 provides Congress 

with another chance to enact these important reforms and prevent 

eminent domain abuse by ending Federal monetary support for 

takings of property for private economic development. 

A. PROPERTY RIGHTS ARE FUNDAMENTAL RIGHTS

The protection of private property rights lies at the foundation of 

American government. ‘‘The conviction that private property was 

essential for self-government and political liberty was long a central tenet of Anglo-American constitutionalism.’’ 7 According to 

John Locke, whose writings were widely read and quoted in the latter half of the eighteenth century and highly influential with the 

Framers, ‘‘[t]he great and chief end . . . of Mens uniting into Commonwealths, and putting themselves under Government, is the 

Preserving of their Property.’’ 8 The Framers, who inherited this tradition, ‘‘were motivated in large part by the desire to establish safeguards for property. They felt that property rights and liberty were 

indissolubly linked.’’ 9 James Madison asserted at the Constitutional Convention that ‘‘the primary objects of civil society are the 

security of property and public safety’’ 10 and, in the Federalist Papers, that ‘‘[g]overnment is instituted no less for the protection of 

property than of . . . individuals.’’ 11 Thus, Madison believed that 

a government ‘‘which [even] indirectly violates [individuals’] property in their actual possessions, is not a pattern for the United 

States.’’ 12

Accordingly, although the word ‘‘property’’ does not appear in the 

Preamble of the Constitution, 

The Federalist Papers make it very clear that each objective enumerated in the Preamble involved, in part, the 

protection of the citizen’s property rights. In fact, using the 

Madisonian conception that property includes all of the 

fundamental aspects of the integrity of the human person, 

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13 Hon. Loren A. Smith, Life, Liberty, & Whose Property?: An Essay on Property Rights, 30 

U. Rich. L. Rev. 1055, 1056 (1996). 14 6 John Adams, The Works of John Adams 280 (Charles Francis Adams, ed. 1850). 15 Vanhorne’s Lessee v. Dorrance, 2 U.S. 304, 310 (1795). 16Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 657 (1829). 17 United States v. James Daniel Good Real Property, 510 U.S. 43, 61 (1993) 18Lynch v. Household Finance, 405 U.S. 538, 552 (1972). 19See Bernard H. Siegan, Property and Freedom 20–21 (1997). 20Kelo, 545 U.S. at 510–11 (Thomas, J. dissenting) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 

386, 388 (1798)). 

tecting the citizens rights in property and property in 

rights.13

Indeed, according to John Adams, ‘‘[p]roperty must be secured or 

liberty cannot exist.’’ 14

The early Supreme Court recognized Americans’ fundamental 

right to private property. In 1795, in an opinion authored by Justice William Paterson, who was a delegate to the Constitutional 

Convention, the Supreme Court declared, ‘‘possessing property, and 

having it protected, is one of the natural, inherent, and unalienable 

rights of man. . . . The preservation of property then is the primary object of the social compact.’’ 15 Because, as Justice Story 

would later explain, ‘‘government can scarcely be deemed to be free, 

where the rights of property are left solely dependent upon the will 

of a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred.’’ 16

More recent Supreme Court opinions continue to acknowledge 

the fundamental nature of property rights, recognizing that 

‘‘[i]ndividual freedom finds tangible expression in property 

rights.’’ 17 And that the ‘‘right to enjoy property without unlawful 

deprivation . . . is, in truth a personal right. . . . In fact, a fundamental interdependence exists between the personal right to liberty 

and the personal right in property. Neither could have meaning 

without the other. That rights in property are basic civil rights has 

long been recognized.’’ 18

The sanctity and centrality of private property rights are thus ingrained in our constitutional design. Therefore, it is no accident 

that the Bill of Rights contains several interrelated rights, in addition to the Takings Clause, a fair reading of which anchors a variety of personal liberties on the protection of property rights: the 

prohibition on infringing people’s right to keep and bear arms (Second Amendment); the prohibition on quartering soldiers on private 

property (Third Amendment); the prohibition on unreasonable 

searches and seizures of property (Fourth Amendment); the prohibition on depriving any person of life, liberty, or property without 

due process of law (Fifth Amendment); the right to trial by jury for 

controversies exceeding twenty dollars (Seventh Amendment); and 

the prohibition of excessive bails and fines (Eighth Amendment).19

B. PUBLIC USE AND KELO V. CITY OF NEW LONDON

Prior to Kelo, it was generally understood that the public use requirement ‘‘embodied the Framers’ understanding that property is 

a natural, fundamental right, prohibiting the government from 

‘tak[ing] property from A. and giv[ing] it to B.’’ 20 As Justice Story 

observed, ‘‘[w]e know of no case, in which a legislative act to transfer the property of A. to B. without his consent, has ever been held 


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21Wilkinson, 27 U.S. (2 Pet.) at 658. 22Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 531 (1868). 23Olcott v. The Supervisors, 83 U.S. (15 Wall.) 678, 694 (1872). 24See, e.g., Old Dominion Land Co. v. United States, 269 U.S. 55 (1925); Rindge Co. v. County 

of Los Angeles, 262 U.S. 700 (1923). 25See, e.g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U.S. 407 

(1992); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30 

(1916). 26 Berman v. Parker, 348 U.S. 26 (1954); Hawaii Housing Authority v. Midkiff, 467 U.S. 229 

(1984). 27Kelo, 545 U.S. at 473. 28 Id. at 475. 

a constitutional exercise of legislative power in any state in the 

union.’’ 21 Similarly, the distinguished jurist Thomas M. Cooley, in 

his landmark 1868 treatise, asserted, ‘‘[t]he public use implies a 

possession, occupation, and enjoyment of the land by the public, or 

public agencies; and there could be no protection whatever to private property, if the right of government to seize and appropriate 

it could exist for any other use.’’ 22 And, the Supreme Court, in 

1872, declared that ‘‘[t]he right of eminent domain nowhere justifies taking property for a private use.’’ 23 Thus, although the public 

use requirement has traditionally allowed property to be taken for 

unambiguous public uses, such as for roads, schools, and courthouses, prior to Kelo it had been interpreted to prohibit the use of 

eminent domain for private-to-private transfers of property. 

Under pre-Kelo Supreme Court precedent, there were generally 

three categories of takings that complied with the public use requirement. First, it was clear that the government could take land 

from its owner without his consent and transfer it to public ownership for use as a public road, a public hospital, or a military base.24

Second, Supreme Court precedent recognized that a government 

could take private property from an owner without his consent and 

transfer it to private parties, referred to as common carriers, who 

would then make the property available for the general public’s 

use, such as with a railroad, a public utility, or a stadium.25 Third, 

and more controversially, the Supreme Court had interpreted the 

public use requirement to permit a government to take private 

property even though the property was subsequently put to private 

use in two cases in which the previous use of the property was determined to be harmful to the general public.26

The Supreme Court’s decision in Kelo greatly weakened the public use requirement by adding a fourth category to this list by upholding the use of eminent domain to take an individual’s private 

property and give it to another for purely private economic development purposes. As the Court described the reason for the City’s 

taking of private property in Kelo: ‘‘the pharmaceutical company Pfizer Inc. announced that it would build a $300 million research 

facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the area’s rejuvenation.’’ 27 The Supreme 

Court held that the properties taken by the City were ‘‘[not] blighted or otherwise in poor condition; rather, they were condemned 

only because they happen to be located in the development area.’’ 28

In fact, the Court held that it would not even look at the question 

of whether the area in question was in economic distress: ‘‘[the 

City’s] determination that the area was sufficiently distressed to 

justify a program of economic rejuvenation is entitled to our defVerDate Mar 15 2010 19:23 Feb 18, 2012 Jkt 019006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\HR401.XXX HR401

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29 Id. at 483. 30 Id. at 478. 31 Id. at 480 (emphasis added). 32 Id. at 494 (O’Connor, J., dissenting). 33 Id. at 501. 34 Id. at 510 (Thomas, J., dissenting). 

erence.’’ 29 Thus, because the takings were part of ‘‘a ‘carefully considered’ development plan,’’ 30 they were upheld as constitutional. 

In reaching its determination that economic development constitutes a public use, the Court ripped the words ‘‘public use’’ right 

out of the Constitution. The Court determined that the words ‘‘public use’’ are synonymous with ‘‘public purpose’’ such that the Court 

was able to pronounce that ‘‘[t]he disposition of this case therefore 

turns on the question of whether the City’s development plan 

serves a public purpose.’’ 31

C. THE DISSENTING OPINIONS IN KELO

Justice O’Connor, joined by the Chief Justice and Justices Scalia 

and Thomas, and Justice Thomas in a separate dissent, vehemently criticized the majority opinion. In the words of Justice 

O’Connor, the majority opinion pronounced that ‘‘[u]nder the banner of economic development, all private property is now vulnerable 

to being taken and transferred to another private owner, so long 

as it might be upgraded—i.e., given to an owner who will use it in 

a way that the legislature deems more beneficial to the public.’’ 32

In other words, according to Justice O’Connor, ‘‘the sovereign may 

take private property currently put to ordinary private use, and 

give it over for new, ordinary private use, so long as the new use 

is predicted to generate some secondary benefit for the public— 

such as increased tax revenue, more jobs, maybe even esthetic 

pleasure.’’ 33 However, ‘‘[t]he Constitution’s text . . . suggests that 

the Takings Clause authorizes the taking of property only if the 

public has a right to employ it, not if the public realizes any conceivable benefit from the taking.’’ 34

Justice Thomas decried that not only did the Kelo majority opinion ignore the original understanding of the public use requirement, but its holding that the courts should defer to the legislature’s judgment as to what constitutes a public use was a far cry 

from the lack of deference given to legislatures when other constitutional rights are at issue: 

We would not defer to a legislature’s determination of the 

various circumstances that establish, for example, when a 

search of a home would be reasonable, or when a convicted 

double-murderer may be shackled during a sentencing proceeding without on-the-record findings, or when state law 

creates a property interest protected by the Due Process 

Clause. . . . The Court has elsewhere recognized ‘‘the 

overriding respect for the sanctity of the home that has 

been embedded in our traditions since the origins of the 

Republic,’’ when the issue is only whether the government 

may search a home. Yet today the Court tells us that we 

are not to ‘‘second-guess the City’s considered judgments,’’ 

when the issue is, instead, whether the government may 

take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with 


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35 Id. at 518 (Thomas, J., dissenting) (citations omitted). 36 Id. at 497 (O’Connor, J., dissenting). 37 Id. at 505. 38 Id. at 503. 39Dick M. Carpenter II & John K. Ross, Victimizing the Vulnerable at 6 (2007). 40See, e.g., Dick Carpenter & John Ross, Empire State Eminent Domain: Robin Hood in Re- verse (2010) (describing extensive use of eminent domain New York, especially against poor and 

minority neighborhoods); Dick Carpenter & John Ross, ‘‘Testing O’Connor and Thomas: Does 

The Use Of Eminent Domain Target Poor And Minority Communities?,’’ 46 Urban Studies 2447 

(2009). 

this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the 

homes themselves are not. 35

As Justice O’Connor pointed out, ‘‘were the political branches the 

sole arbiters of the public-private distinction, the Public Use Clause 

would amount to little more than hortatory fluff.’’ 36 Moreover, as 

is discussed in the next section, the dissenting opinions predicted 

that the effects of the allowing takings for private economic development would fall most harshly on people of lower economic means, 

minorities, houses of worship, and farmers. 

D. EMINENT DOMAIN ABUSE DISPROPORTIONATELY AFFECTS

THE MOST VULNERABLE

The Kelo decision opened the door for virtually any property to 

be taken by eminent domain for economic development purposes. 

As Justices O’Connor and Thomas observed in their dissenting 

opinions in Kelo, eminent domain abuse falls disproportionately on 

the poor, minorities, and other groups that are likely to be politically weak. Thus, the beneficiaries of the Kelo decision, Justice 

O’Connor asserted, are ‘‘likely to be those citizens with disproportionate influence and power in the political process, including large 

corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer 

resources to those with more.’’ 37

After Kelo, ‘‘[n]othing is to prevent the State from replacing any 

Motel 6 with a Ritz-Carlton, any home with a shopping mall, or 

any farm with a factory.’’ 38 In fact, according to a 2007 study conducted by the Institute for Justice, 

Eminent domain project areas include a significantly 

greater percentage of minority residents (58%) compared 

to their surrounding communities (45%). Median incomes 

in project areas are significantly less ($18,935.71) than the 

surrounding communities ($23,113.46), and a significantly 

greater percentage of those in project areas (25%) live at 

or below poverty levels compared to surrounding cities 

(16%). . . . Taken together, more residents in areas targeted by eminent domain—as compared to those in surrounding communities—are ethnic or racial minorities, 

have completed significantly less education, live on significantly less income, and significantly more of them live at 

or below the Federal poverty line.39

Other recent studies show that areas populated by the poor and 

minorities are far more likely to be targeted for condemnation than 

other neighborhoods.40 These studies confirm Justice Thomas’ 

strong statement in dissent that, 


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41Kelo, 545 U.S. at 521–22 (Thomas, J., dissenting). 42 Brief of Amici Curiae National Association for the Advancement of Colored People, AARP, 

Hispanic Alliance of Atlantic County, Inc., Citizens in Action, Cramer Hill Resident Association, 

Inc., and the Southern Christian Leadership Conference in Support of Petitioners, 2004 WL 

2811057 at *3–*9. 

Allowing the government to take property solely for public 

purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal 

guarantees that these losses will fall disproportionately on 

poor communities. Those communities are not only systematically less likely to put their lands to the highest and 

best social use, but are also the least politically powerful. 

If ever there were justification for intrusive judicial review 

of constitutional provisions that protect ‘‘discrete and insular minorities,’’ surely that principle would apply with 

great force to the powerless groups and individuals the 

Public Use Clause protects. The deferential standard this 

Court has adopted for the Public Use Clause is therefore 

deeply perverse. It encourages those citizens with disproportionate influence and power in the political process, 

including large corporations and development firms, to victimize the weak.41

The studies also confirm the concerns raised by the National Association for the Advancement of Colored People, the American Association for Retired Persons, and other non-profit organizations in 

their amicus brief to the Supreme Court in the Kelo case: 

Elimination of the requirement that any taking be for a 

true public use will disproportionately harm racial and 

ethnic minorities, the elderly, and the economically underprivileged. These groups are not just affected more often 

by the exercise of eminent domain power, but they are affected differently and more profoundly. Expansion of eminent domain to allow the government or its designated delegate to take property simply by asserting that it can put 

the property to a higher use will systematically sanction 

transfers from those with less resources to those with 

more. This will place the burden of economic development 

on those least able to bear it, exacting economic, psychic, 

political and social costs. . . . 

The history of eminent domain is rife with abuse specifically targeting minority neighborhoods. Indeed, the displacement of African-Americans and urban renewal 

projects were so intertwined that ‘‘urban renewal’’ was 

often referred to as ‘‘Negro removal. . . .’’ 

Well-cared-for properties owned by minority and elderly 

residents have repeatedly been taken so that private enterprises could construct superstores, casinos, hotels, and office parks. For example, four siblings in their seventies 

and eighties were forced to leave their homes and Christmas tree farm to enable the city of Bristol, Connecticut to 

erect an industrial park. . . . Several African-American 

families in Canton, Mississippi were similarly forced to 

leave the homes they had lived in for over 60 years to clear 

land for a Nissan automobile plant.42


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43 Brief of Amicus Curiae the Becket Fund for Religious Liberty, 2004 WL 2787141 at *3 

(quoting Walz v. Comm’r, 397 U.S. 664, 673 (1970)). 44 Brief of Amicus Curiae the Becket Fund for Religious Liberty, 2004 WL 278714l, at *11 n.22 

(citing Sue Britt, ‘‘Moose Lodge Set for Court Fight; Group to Fight Home Depot Land Takeover,’’ Belleville News-Democrat (Missouri), April 1, 2002, at 1B (Moose Lodge faced condemnation in order to bring a Home Depot to the city); April McClellan-Copeland, Hudson, ‘‘American 

Legion Closer on Hall; City Wants Building to Demolish for Project,’’ Plain Dealer (Cleveland), 

March 8, 2003, at B3 (American Legion property faced condemnation to make way for small 

upscale shops, restaurants, and offices); Todd Wright, ‘‘Frenchtown Leaders Want Shelter to 

Move; Roadblock to Revitalization?,’’ Tallahassee Democrat, July 13, 2003, at Al (describing 

threatened condemnation of homeless shelter to clear the way for business development); Joseph 

P. Smith, ‘‘Vote on Land Confiscation,’’ Daily Journal (Illinois), October 6, 2004, at 1A (detailing 

threatened condemnation of a Goodwill thrift store in order to build a shopping center)). 45 American Farmland Trust Policy Update (July 6, 2005). 46 Brief Amici Curiae of the American Farm Bureau Federation et al., 2004 WL 2787138, at 

*2–*4. 47 Id. 48 Id. 

Eminent domain abuse also tends to affect religious groups and 

their houses of worship and farmers and ranchers disproportionately. Houses of worship and other religious institutions are, by 

their very nature, non-profit and almost universally tax-exempt. 

These fundamental characteristics of religious institutions render 

their property singularly vulnerable to being taken under the rationale approved by the Supreme Court in favor of for-profit, taxgenerating businesses. As the Becket Fund for Religious Liberty 

wrote in its amicus brief in the Kelo case, ‘‘[r]eligious institutions 

will always be targets for eminent domain actions under a scheme 

that disfavors non-profit, tax-exempt property owners and replaces 

them with for-profit, tax-generating businesses. Such a result is 

particularly ironic, because religious institutions are generally exempted from taxes precisely because they are deemed to be ‘beneficial and stabilizing influences in community life.’’’ 43

In addition, many other charitable organizations will face similar 

threats because of their tax-exempt status. Indeed, several charitable organizations have faced condemnation threats in recent 

years to satisfy municipal appetite for more tax revenue.44

Additionally, according to the American Farmland Trust, ‘‘[w]ith 

so much farmland on the urban edge and near cities still in steep 

decline, ex-urban towns could be tempted by [the Kelo] ruling to 

make farmland available for subdivisions.’’ 45 As the American 

Farm Bureau Federation has pointed out, ‘‘[a]s valuable as that 

land is to our members and to the rest of the country, however, it 

will often be the case that more intense development by other private individuals or entities for other private purposes would yield 

greater tax revenue to local government.’’ 46 Thus, the Kelo decision 

threatens American farmers and ranchers ‘‘with the loss of productive farm and ranch land solely to allow someone else to put it to 

a different private use.’’ 47 American farmers and ranchers need 

their private property rights protected ‘‘if they are to find economically feasible ways to use their land and remain in the agriculture 

business—the business of feeding the American populace.’’ 48

E. PRIVATE PROPERTY RIGHTS PROTECTION ACT

The Private Property Rights Protection Act protects property 

owners by restricting the ability of state and local governments to 

take private property for economic development purposes if they receive Federal economic development funds. Specifically, if a state 

or political subdivision of a state uses its eminent domain power 


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to transfer private property to other private parties for economic 

development, the state or political subdivision is ineligible to receive Federal economic development funds for 2 fiscal years following a judicial determination that the law has been violated. Additionally, the bill prohibits the Federal Government from using 

eminent domain for economic development purposes. 

The bill’s key provisions are contained in sections 2(a) and 2(b). 

Section 2(a) sets out the state and local activities that the bill prohibits: 

No State or political subdivision of a State shall exercise 

its power of eminent domain, or allow the exercise of such 

power by any person or entity to which such power has 

been delegated, over property to be used for economic development or over property that is subsequently used for 

economic development, if that State received Federal economic development funds during any fiscal year in which 

it does so. 

And section 2(b) sets forth the consequence for a state or local government that violates section 2(a): 

A violation of subsection (a) by a State or political subdivision shall render such State or political subdivision ineligible for any Federal economic development funds for a period of 2 fiscal years following a final judgment on the 

merits by a court of competent jurisdiction that such subsection has been violated. . . . 

In order to encourage state and local governments to return private property that is taken for economic development to the former 

private landowner, section 2(c) terminates the ineligibility period if 

the offending state or local government returns all real property 

the taking of which the courts determine violated section 2(a). 

As the bill is intended to preserve the property rights protections 

jeopardized by the Supreme Court’s decision in Kelo, its definition 

of ‘‘economic development’’ continues to allow the types of takings 

that have traditionally been considered appropriate public uses. 

Traditional public uses include those where the condemned land is 

actually ‘‘used’’ by the public, either by building a governmentowned structure on it (such as a road or a bridge), or by constructing a privately owned facility that the owner is legally required to allow the general public to use, such as a public utility. 

The bill also includes express exceptions for the transfer of property to public ownership, and to common carriers and public utilities, and for related things like pipelines, and makes reasonable exceptions for the taking of land that is being used in a way that constitutes an immediate threat to public health and safety. Additionally, the bill makes exceptions for: the incidental use of a public 

property by a private entity, such as a retail establishment on the 

ground floor in a public property; the acquisition of abandoned 

property; and for clearing defective chains of title in which no one 

can be said to really own the property in the first place. However, 

while the bill does contain reasonable definitions and exceptions, it 

also includes a rule of construction that provides that its provisions 

shall be construed in favor of a broad protection of private property 


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49South Dakota v. Dole, 483 U.S. 203, 206 (1987) (upholding as constitutional legislation in 

which Congress provided that a state would lose 5% of its Federal transportation funds unless 

states mandated a drinking age of 21). 50 Id. at 207–208. 

rights, to the maximum extent permitted by the terms of the bill 

and the Constitution. 

Although the Private Property Rights Protection Act does not directly overturn Kelo, it should largely eliminate economic development takings, if states and their political subdivisions elect to continue to receive Federal economic development funds. Congress’ 

power to condition the use of Federal funds extends to prohibiting 

states and localities from receiving any Federal economic development funds for a specified period of time if such entities abuse 

their power of eminent domain, even if only state and local funds 

are used in that abuse of power. Such a broader prohibition is an 

appropriate use of Congress’ spending power, as the Supreme 

Court has made clear that ‘‘Congress may attach conditions on the 

receipt of Federal funds . . . ‘to further broad policy objectives by 

conditioning receipt of Federal moneys upon compliance by the recipient with Federal statutory and administrative directives.’ ’’ 49

Congress may attach such conditions to the receipt of Federal 

funds provided they are ‘‘in pursuit of ‘the general welfare,’ ’’ related ‘‘to the Federal interest in particular national projects or programs,’’ and that they are ‘‘unambiguous.’’ 50

The bill denies states or localities that abuse eminent domain all 

Federal economic development funds for a period of 2 years. There 

is a clear connection between the Federal funds that would be denied and the abuse Congress is intending to prevent: states or localities that have abused their eminent domain power by using 

‘‘economic development’’ as an improper rationale for a taking 

should not be trusted with Federal taxpayer funds for other ‘‘economic development’’ projects which could themselves result in abusive takings of private property. 

Furthermore, to ensure that any conditioning of the use of Federal funds is unambiguous, the bill includes a ‘‘notification’’ section 

that requires the Attorney General to compile a list of the Federal 

laws under which Federal economic development funds are distributed and communicate such list to each state and also make it 

available on the Internet. This will put states and localities on notice that if they receive any Federal funds under the listed Federal 

laws, they must refrain from abusing their power of eminent domain or risk losing such funds for a period of 2 years. Moreover, 

only the locality, and not the whole state, would lose its economic 

development funds if only the locality abuses its eminent domain 

powers. 

Finally, the bill includes a provision providing that the legislation would not become effective until the start of the first fiscal 

year following the enactment of the legislation in order to provide 

states and localities with sufficient lead time within which to come 

into compliance with the legislation, and the legislation would not 

apply to any project for which condemnation proceedings have been 

initiated prior to the date of enactment. 


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Hearings 

The Committee’s Subcommittee on the Constitution held 1 day of 

hearings on H.R. 1433, on April 12, 2011. Testimony was received 

from Lori Ann Vendetti, a homeowner from Long Branch, N.J.; 

John Echeverria, Professor, Vermont Law School; and Dana Berliner, Senior Attorney, Institute for Justice. 

Committee Consideration 

On January 24, 2012, the Committee met in open session and ordered the bill H.R. 1433 favorably reported with an amendment, by 

a roll call vote of 23 to 5, a quorum being present. 

Committee Votes 

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the following 

roll call votes occurred during the Committee’s consideration of 

H.R. 1433. 

1. An amendment by Mr. Nadler to strike ‘‘public facility’’ from 

the public uses for which a governmental unit may exercise its 

power of eminent domain under the bill. Defeated 10 to 18. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Smith, Chairman ........................... X 

Mr. Sensenbrenner, Jr. ......................... X 

Mr. Coble .............................................. X 

Mr. Gallegly ..........................................

Mr. Goodlatte .......................................

Mr. Lungren .......................................... X 

Mr. Chabot ........................................... X 

Mr. Issa ................................................

Mr. Pence .............................................

Mr. Forbes ............................................ X 

Mr. King ............................................... X 

Mr. Franks ............................................ X 

Mr. Gohmert ......................................... X 

Mr. Jordan ............................................ X 

Mr. Poe .................................................

Mr. Chaffetz .........................................

Mr. Griffin ............................................ X 

Mr. Marino ............................................ X 

Mr. Gowdy ............................................ X 

Mr. Ross ............................................... X 

Ms. Adams ........................................... X 

Mr. Quayle ............................................

Mr. Amodei ........................................... X 

Mr. Conyers, Jr., Ranking Member ....... X 

Mr. Berman ..........................................

Mr. Nadler ............................................ X 


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Scott .............................................. X 

Mr. Watt ...............................................

Ms. Lofgren ..........................................

Ms. Jackson Lee ................................... X 

Ms. Waters ........................................... X 

Mr. Cohen ............................................. X 

Mr. Johnson, Jr. .................................... X 

Mr. Pierluisi .......................................... X 

Mr. Quigley ........................................... X 

Ms. Chu ................................................ X 

Mr. Deutch ........................................... X 

Ms. Sa ́ nchez ......................................... X 

[Vacant] ...............................................

Total ............................................ 10 18 

2. Motion to report H.R. 1433 favorably, as amended. Passed 23 

to 5. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Smith, Chairman ........................... X 

Mr. Sensenbrenner, Jr. ......................... X 

Mr. Coble .............................................. X 

Mr. Gallegly .......................................... X 

Mr. Goodlatte ....................................... X 

Mr. Lungren .......................................... X 

Mr. Chabot ........................................... X 

Mr. Issa ................................................

Mr. Pence .............................................

Mr. Forbes ............................................ X 

Mr. King ............................................... X 

Mr. Franks ............................................ X 

Mr. Gohmert ......................................... X 

Mr. Jordan ............................................ X 

Mr. Poe .................................................

Mr. Chaffetz .........................................

Mr. Griffin ............................................ X 

Mr. Marino ............................................ X 

Mr. Gowdy ............................................

Mr. Ross ............................................... X 

Ms. Adams ........................................... X 

Mr. Quayle ............................................

Mr. Amodei ........................................... X 

Mr. Conyers, Jr., Ranking Member ....... X 


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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Mr. Berman ..........................................

Mr. Nadler ............................................ X 

Mr. Scott .............................................. X 

Mr. Watt ...............................................

Ms. Lofgren .......................................... X 

Ms. Jackson Lee ................................... X 

Ms. Waters ........................................... X 

Mr. Cohen ............................................. X 

Mr. Johnson, Jr. .................................... X 

Mr. Pierluisi .......................................... X 

Mr. Quigley ........................................... X 

Ms. Chu ................................................ X 

Mr. Deutch ...........................................

Ms. Sa ́ nchez .........................................

Mr. Polis ...............................................

Total ............................................ 23 5 

Committee Oversight Findings 

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

New Budget Authority and Tax Expenditures 

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

Congressional Budget Office Cost Estimate 

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 1433, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, February 14, 2012. 

Hon. LAMAR SMITH, CHAIRMAN, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1433, the ‘‘Private Property Rights Protection Act of 2012.’’ 


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If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Daniel Hoople (for 

Federal costs), who can be reached at 226–2860, and Melissa 

Merrell (for the State and local impact), who can be reached at 

225–3220. 

Sincerely, 

DOUGLAS W. ELMENDORF, DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 1433—Private Property Rights Protection Act of 2012. 

As ordered reported by the House Committee on the Judiciary on 

January 24, 2012 

H.R. 1433 would deny Federal economic development assistance 

to State or local governments that exercise the power of eminent 

domain for economic development purposes or to take property 

from a tax-exempt entity, such as a religious or nonprofit organization. (Eminent domain is the right to take private property for public use.) The bill also would prohibit Federal agencies from engaging in such practices. Private property owners would be given the 

right to bring legal actions seeking enforcement of those provisions, 

and the legislation would waive States’ Constitutional immunity to 

such suits. Finally, H.R. 1433 would require the Attorney General 

to notify States and the public of how the legislation would affect 

individuals’ property rights and to report to the Congress each year 

on private rights of action brought against State and local governments. 

CBO estimates that implementing this legislation would have no 

significant net effect on discretionary spending over the next five 

years. CBO estimates that additional reporting requirements by 

the Attorney General would cost less than $500,000 over the next 

five years, assuming appropriation of the necessary amounts. Enacting H.R. 1433 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. 

H.R. 1433 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

but would impose significant new conditions on the receipt of Federal economic development assistance by State and local governments. (Such conditions are not considered mandates under 

UMRA.) Because those conditions would apply to a large pool of 

funds, the bill effectively would restrict the use of eminent domain 

by State and local governments and would limit the ability of local 

governments to manage land use in their jurisdictions. Further, 

State and local governments could incur significant legal expenses 

to respond to private legal actions authorized by the bill. 

CBO expects that few State and local governments would receive 

reduced Federal assistance under the bill. Under current law, the 

Federal Government provides economic development assistance 

through several sources, including programs of the Departments of 

Agriculture, Health and Human Services, and Housing and Urban 


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Development; the Economic Development Administration; and various regional commissions. CBO expects that most jurisdictions 

would not risk this assistance by exercising the use of eminent domain in situations described by the bill. Furthermore, the bill provides several exceptions where the use of eminent domain would 

not result in a reduction in Federal assistance, including takings 

for public use, for public rights of way, to acquire abandoned property, and to remove immediate threats to public health and safety. 

Given existing State laws that restrict powers of eminent domain 

and based on the historical use of such power, CBO expects that 

the use of eminent domain for purposes that would not meet any 

of the exceptions specified in the bill would be minimal. 

State or local governments found to have exercised the power of 

eminent domain targeted by the bill would be ineligible for Federal 

economic development assistance for two years. In those cases, 

CBO expects that affected property would be returned or replaced 

(which would reinstate eligibility) or that Federal assistance would 

instead be provided to other eligible entities. Any change in the 

pace of Federal spending would be insignificant, CBO estimates. 

The CBO staff contacts for this estimate are Daniel Hoople (for 

Federal costs) and Melissa Merrell (for the State and local impact). 

The estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

Performance Goals and Objectives 

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 1433 will preserve and protect private property rights. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 1433 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(e), 9(f), or 9(g) of Rule XXI. 

Section-by-Section Analysis 

The following discussion describes the bill as reported by the 

Committee. 

Section 1. Short title 

Section 1 provides for the short title of the legislation, the ‘‘Private Property Rights Protection Act of 2012.’’ 

Section 2. Prohibition of eminent domain abuse by States 

Section 2(a) prohibits States and political subdivisions of States 

(and any entity to which they have delegated the power of eminent 

domain) from exercising its power of eminent domain over property 

that is intended to be used for economic development or is subsequently used for economic development, if that State or political 

subdivision receives Federal economic development funds during 

any fiscal year in which it the property is so used or intended to 

be used. 

Section 2(b) provides that a violation of subsection (a) shall 

render a State or political subdivision ineligible for Federal ecoVerDate Mar 15 2010 19:23 Feb 18, 2012 Jkt 019006 PO 00000 Frm 00020 Fmt 6659 Sfmt 6601 E:\HR\OC\HR401.XXX HR401

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nomic development funds for a period of 2 fiscal years following a 

final judgment on the merits by a court of competent jurisdiction 

that such subsection has been violated. Moreover, any Federal 

agency charged with distributing those funds shall withhold them 

for such 2-year period, and any such funds distributed to a State 

or political subdivision shall be returned or reimbursed to the appropriate Federal agency or authority of the Federal Government, 

or component thereof. 

Section 2(c) provides a State or political subdivision with the opportunity to cure a violation of subsection (a). A State or political 

subdivision can regain its eligibility to receive Federal economic development funds if it returns all real property the taking of which 

was found to have constituted a violation of subsection (a) and replaces any other property destroyed and repairs any other property 

damaged as a result of such violation. Additionally, if there are 

penalties or interest imposed by some other law for economic development takings, those penalties and interest must be paid in order 

for a violation to be cured. 

Section 3. Prohibition on eminent domain abuse by the Federal Government 

Section 3 provides that the Federal Government or any authority 

of the Federal Government shall not exercise its power of eminent 

domain for economic development purposes. 

Section 4. Private right of action 

Section 4(a) provides that any private property owner or tenant 

who suffers injury as a result of a violation of any provision of this 

Act may bring an action in the appropriate Federal or State court. 

It further clarifies that a State is not entitled to sovereign immunity from any such action. Additionally, it provides that a property 

owner claiming a violation of this Act may seek any appropriate relief through a preliminary injunction or a temporary restraining 

order. 

Section 4(b) provides a 7-year statute of limitations from the conclusion of condemnation proceedings for actions brought pursuant 

to this Act. Section 4(c) provides that in any action or proceeding 

under this Act, the court shall allow prevailing plaintiffs reasonable attorneys’ fees as part of the costs, and include expert fees as 

part of the attorneys’ fees. 

Section 5. Reporting of Violations to Attorney General 

Section 5 provides that private property owners and tenants may 

report violations of the Act to the Attorney General and that the 

Attorney General shall investigate reports of such violations. Additionally, it provides that the Attorney General shall notify the Federal agency, or state or local government of an alleged violation 

and give the applicable governmental unit 90 days to show that it 

is either not in violation or that it has cured the violation. If after 

90 days the Attorney General determines that the applicable governmental unit is still violating the Act or has not cured its violation, then the Attorney General is to bring suit to enforce the Act 

unless the owner or tenant has already brought such suit, in which 

case the Attorney General shall intervene if the Attorney General 

determines intervention is necessary to enforce the Act. 


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Section 6. Notification by Attorney General 

Section 6(a) provides that not later than 30 days after the enactment of this Act, the Attorney General shall provide to the chief 

executive officer of each State the text of this Act and a description 

of the rights of property owners under this Act. It also provides 

that not later than 120 days after the enactment of this Act, the 

Attorney General shall compile a list of the Federal laws under 

which Federal economic development funds are distributed. Such 

list and any successive revisions of such list shall be communicated 

by the Attorney General to the chief executive officer of each State 

and also made available on the Internet website maintained by the 

United States Department of Justice. 

Section 6(b) provides that not later than 30 days after the enactment of this Act, the Attorney General shall publish in the Federal 

Register and make available on the Internet website maintained by 

the United States Department of Justice a notice containing the 

text of this Act and a description of the rights of property owners 

under this Act. 

Section 7. Reports 

Section 7(a) provides that not later than 1 year after the date of 

enactment of this Act, and every subsequent year thereafter, the 

Attorney General shall transmit a report identifying States or political subdivisions that have used eminent domain in violation of 

this Act to the Chairman and Ranking Member of the Committee 

on the Judiciary of the House of Representatives and to the Chairman and Ranking Member of the Committee on the Judiciary of 

the Senate. 

Section 7(b) requires each state and local authority that is subject to a private right of action under this Act to report to the Attorney General any information the Attorney General needs to 

make the report required by subsection (a). 

Section 8. Sense of Congress regarding rural America 

Section 8 contains findings and a Sense of Congress that the use 

of eminent domain for the purpose of economic development is a 

threat to agricultural and other property in rural America and that 

the Congress should protect the property rights of Americans, including those who reside in rural areas. 

Section 9. Definitions 

Section 9 contains definitions of terms used in the Act. The term 

‘‘economic development’’ means taking private property, without 

the consent of the owner, and conveying or leasing such property 

from one private person or entity to another private person or entity for commercial enterprise carried on for profit, or to increase tax 

revenue, tax base, employment, or general economic health. The 

term ‘‘economic development’’ does not include: (A) conveying private property to public ownership, such as for a road, hospital, or 

military base, or to an entity, such as a common carrier, that 

makes the property available for use by the general public as of 

right, such as a railroad, or public facility, or for use as a right of 

way, aqueduct, pipeline, or similar use; (B) removing harmful uses 

of land provided such uses constitute an immediate threat to public 

health and safety; (C) leasing property to a private person or entity 


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that occupies an incidental part of public property or a public facility, such as a retail establishment on the ground floor of a public 

building; (D) acquiring abandoned property; (E) clearing defective 

chains of title; and (F) taking private property for use by a public 

utility (the term ‘‘public utility’’ is intended to include all utilities 

providing electric, natural gas, telecommunications, water and 

wastewater services and other essential services, either directly to 

the public or indirectly through provision of such services at the 

wholesale level for resale to the public). 

The term ‘‘Federal economic development funds’’ means any Federal funds distributed to or through States or political subdivisions 

of States under Federal laws designed to improve or increase the 

size of the economies of States or political subdivisions of States. 

The term ‘‘State’’ means each of the several States, the District 

of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States. 

Section 10. Severability and effective date 

Section 10(a) provides for a severability clause. Section 10(b) provides that this Act shall take effect upon the first day of the first 

fiscal year that begins after the date of the enactment of this Act, 

but shall not apply to any project for which condemnation proceedings have been initiated prior to the date of enactment. 

Section 11. Sense of Congress 

Section 11 states that it is the sense of the Congress that it is 

the policy of the United States to encourage, support, and promote 

the private ownership of property and to ensure that the constitutional and other legal rights of private property owners are protected by the Federal Government. 

Section 12. Broad construction 

Section 12 provides that the Act shall be construed in favor of 

a broad protection of private property rights, to the maximum extent permitted by the terms of this Act and the Constitution. 

Section 13. Limitation on Statutory Construction 

Section 13 provides that nothing in the Act may be construed to 

supersede, limit, or otherwise affect any provision of the Uniform 

Relocation Assistance and Real Property Acquisition Policies Act. 

Section 14. Religious and Nonprofit Organizations 

Section 14 provides that no State or political subdivision of a 

State shall exercise its power of eminent domain over property of 

a religious or other nonprofit organization by reason of the nonprofit or tax-exempt status of such organization if that State or political subdivision receives Federal economic development funds 

during any fiscal year in which it does so and makes States and 

political subdivisions ineligible for Federal economic development 

funds for a period of 2 years if they violate this prohibition. It further provides that the Federal Government or any authority thereof shall not exercise its power of eminent domain over property of 

such organizations by reason of their nonprofit or tax-exempt status. 


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Section 15. Report by Federal Agencies on Regulations and Procedures Relating to Eminent Domain 

Section 15 provides that each Executive department and agency 

shall review all rules, regulations, and procedures and report to the 

Attorney General on the activities of that department or agency to 

bring its rules, regulations and procedures into compliance with 

this Act. 

Section 16. Sense of Congress 

Section 16 provides that it is the sense of Congress that any and 

all precautions shall be taken by the government to avoid the unfair or unreasonable taking of property away from survivors of 

Hurricane Katrina for economic development purposes or for the 

private use of others. 

Section 17. Disproportionate Impact on Minorities 

Section 17 provides that if a court determines that a violation of 

the Act has occurred and that the violation has a disproportionately high impact on the poor or minorities, the Attorney General 

shall use reasonable efforts to locate and inform former owners and 

tenants of the violation and any remedies they may have. 


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Dissenting Views 

H.R. 1433, the ‘‘Private Property Rights Protection Act,’’ has the 

laudable purpose of preventing the abuse of the power of eminent 

domain to benefit a private party at the expense of another private 

party. It does so, however, by imposing vague and inconsistent restrictions on state and local governments. As a result, jurisdictions 

will be unable to determine in advance what is prohibited, and 

therefore, how to avoid the bill’s disastrous financial penalties. 

H.R. 1433 falls short of its purpose by being both over- and 

under-inclusive. It would allow takings that have historically been 

abused to the detriment of property owners and vulnerable communities, while also potentially blocking worthwhile projects with 

clear public purposes and public benefits. The bill provides no remedy for an aggrieved property owner or tenant and offers no mechanism to prevent a prohibited taking from occurring. Instead, the 

legislation sets up a system where, if the property owner or tenant 

prevails, the jurisdiction would be subject to crushing penalties, 

while the aggrieved property owner gets nothing. 

For these reasons, and those set out below, we respectfully dissent, and urge the House to reject this dangerously flawed legislation. 

DESCRIPTION AND BACKGROUND

H.R. 1433, the ‘‘Private Property Rights Implementation Act of 

2011,’’ would restrict the use of eminent domain by states or political subdivisions. It would prohibit states and political subdivisions 

from exercising eminent domain for ‘‘economic development’’ if the 

jurisdiction receives Federal economic development funds during 

any fiscal year in which the property is used or intended to be used 

for economic development purposes. Persons whose property has 

been taken in violation of the Act, or tenants of that property, 

would have the right to sue the jurisdiction for temporary injunctive relief for a period of 7 years following the completion of the 

taking. A violation of the Act would result in the state or political 

subdivision’s ineligibility for any Federal economic development 

funds for 2 fiscal years following a final ruling on the merits. A jurisdiction could cure the violation by returning the real property 

that was unlawfully taken, replacing any property that was destroyed, and repairing any damage. 

A detailed section-by-section of the bill’s substantive provisions 

follows: 

Section 2 of the bill prohibits states and political subdivisions 

from exercising eminent domain for economic development, if such 

economic development occurs within 7 years following the exercise 

of eminent domain if Federal economic development funds are received by the jurisdiction during any fiscal year in which the property is used or intended to be used. A violation, if found by a court 


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of competent jurisdiction, would result in a state or political subdivision’s ineligibility for any Federal economic development funds 

for 2 fiscal years following a final ruling on the merits. The appropriate Federal agency would withhold the funds and if a violation 

occurs after funds have been distributed, a state or political subdivision would reimburse the appropriate Federal agency. States 

and political subdivisions would not be ineligible for funds if a prohibited taking is cured by returning the real property that was unlawfully taken, replacing any property that was destroyed, and repairing any damage. An amendment by Representative Sheila 

Jackson Lee (D-TX), which was accepted by voice vote, added a requirement that the state must also pay unspecified applicable penalties and interest to retain eligibility for economic development 

funds. 

Section 3 of the bill prohibits the Federal Government from exercising eminent domain for economic development. 

Section 4 provides any private property owner or tenant who has 

suffered an injury as a result of a violation of the Act with a private right of action in the appropriate state or Federal court. A private property owner has 7 years following a state or political jurisdiction’s taking of his or her property and using it in violation of 

this Act to bring an action. Prevailing plaintiffs are entitled to reasonable attorney’s fees. Costs and expert fees are included as part 

of the attorney’s fees. 

Section 5 of the bill provides that a property owner or tenant 

who suffers an injury as a result may report the violation to the 

Attorney General (AG). The AG must conduct an investigation and 

if he or she finds a violation, the AG must notify the governmental 

entity of the violation. The governmental entity has 90 days to 

demonstrate that no violation has occurred, or to cure the violation 

by returning the property, rebuilding any property destroyed, and 

repairing any damage to the property. If not, the AG must commence an action, unless the property owner or tenant has already 

brought an action. 

In addition, section 5 provides that the AG may only bring an action in the 7-year period beginning at the conclusion of the condemnation proceeding if, during that time, the property is used for 

economic development. 

Section 6 of the bill gives the AG the responsibility for providing 

states with the text of the Act and a description of the rights of 

property owners under the Act no later than 30 days after the Act’s 

enactment. The AG is also responsible for compiling an annual list 

of the Federal laws under which Federal economic funds are distributed and providing that list to states and posting that list on 

the Justice Department website no later than 120 days after the 

Act’s enactment. Finally, the AG is responsible for publishing a notice containing the text of this Act and a description of rights of 

property owners under this Act in the Federal Register and on the 

Justice Department’s website no later than 30 days after the date 

of the Act’s enactment. 

Section 7 of the bill requires the AG to provide an annual report 

to the House and Senate Judiciary Committees identifying states 

or political subdivisions that have used eminent domain in violation of the Act. The report must identify all private actions brought 


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as a result of a state or political subdivision’s violation of this Act. 

In addition, the report must identify all states and political subdivisions that have lost Federal economic development funds as a 

result of a violation of the Act, as well as describe the type and 

amount of Federal economic development funds lost in each state 

or political subdivision and the Agency that is responsible for withholding such funds. Further, the report must identify violations reported to the AG, and actions brought by the AG. The report must 

discuss all instances in which a state or political subdivision has 

cured a violation of the Act. Finally, an amendment offered by Representative Jackson Lee, and adopted by a voice vote, added a requirement that the report must identify the percentage of minority 

residents compared to the surrounding nonminority residents, and 

include the median incomes of those impacted by a violation of the 

Act. 

Section 8 of the bill expresses the Sense of the Congress that 

Congress should protect the property rights of Americans, including 

those who reside in rural areas. 

Section 9 of the bill sets forth various definitions for terms used 

in the Act. It defines the term ‘‘economic development’’ as the taking of private property without the owner’s consent and conveying 

or leasing that private property from one private owner to another 

private owner for commercial enterprise carried on for profit, or to 

increase tax revenue, tax base, employment, or general economic 

health. The definition explicitly excludes several types of takings: 

• conveying of private property to public ownership, such as 

for a road, hospital, or military base; 

• conveying private property to an entity, such as a common 

carrier, that makes the property available for use by the general public as of right, such as a railroad, public utility, or 

public facility; 

• removing harmful uses of land provided such uses constitute 

an immediate threat to public health and safety; 

• leasing property to a private person or entity that occupies 

an incidental part of public property or a public facility, such 

as a retail establishment on the ground floor of a public 

building; 

• acquiring abandoned property; 

• clearing defective chains of title; 

• taking private property for use by a public utility; and 

• redeveloping a brownfield site as defined in the Small Business Liability Relief and Brownfields Revitalization Act. 

Section 9 also defines the term ‘‘Federal economic development 

funds’’ as funds administered to improve or increase a state or political subdivision’s economy. 

In addition, it provides that the term, ‘‘State,’’ includes states, 

the District of Columbia, the Commonwealth of Puerto Rico, and 

any other territory or possession of the United States. 

Section 10 of the bill provides that the provisions of the Act shall 

be severable. The section also provides that the Act takes effect 

upon the start of the first fiscal year following its enactment, but 


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1 H.R. 1433 § 6(a)(2). 

that the Act does not apply to any projects for which condemnation 

proceedings have been initiated prior to the date of enactment. 

Section 11 of the bill sets forth the Sense of the Congress to encourage and promote the private ownership of property and to ensure that the constitutional and other legal rights of private property owners are protected by the Federal Government. 

Sections 12 and 13 of the bill concern statutory construction. Section 12 requires that the Act be construed in favor of a broad protection of private property rights. Section 13 provides that nothing 

in this Act may be construed to supercede, limit, or otherwise affect 

any provision of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 

Section 14 of the bill prohibits the states from exercising the 

power of eminent domain over property of a religious or other nonprofit organization by reason of the nonprofit or tax-exempt status 

of such organization. 

Section 15 of the bill requires a report to the AG from each executive department and agency of all rules, regulations, and procedures and actions to bring them in compliance with the Act. 

Section 16 of the bill expresses the Sense of the Congress that 

all precautions must be taken by the government to avoid the unfair or unreasonable taking of property away from survivors of 

Hurricane Katrina. 

Representative Jackson Lee offered an amendment, adopted by a 

voice vote, that would require the Attorney General to use reasonable efforts to locate former owners and tenants of the violation 

and notify them of any remedies they may have if the court determines that a violation of the Act had occurred and that the violation had a disproportionate impact on the poor or minorities. 

CONCERNS WITH H.R. 1433

I. THE PENALTY WILL FINANCIALLY CRIPPLE STATE AND LOCAL

GOVERNMENTS AND PROVIDE NO RELIEF TO PROPERTY OWNERS

A. The bill’s penalties will bankrupt states and localities 

1. Loss of economic development funds for 2 years would devastate state and local budgets 

Although the bill purports to define ‘‘Federal economic development funds,’’ it nevertheless requires the Attorney General to ‘‘compile a list of the Federal laws under which Federal economic development funds are distributed.’’ 1 The Government Accountability 

Office, however, testified about the difficulty of determining what 

qualifies as an ‘‘economic development program’’: 

Absent a common definition for economic development, we 

had previously developed a list of nine activities most often 

associated with economic development. These activities include planning and development strategies for job creation 

and retention, development, developing new markets for 

existing products, building infrastructure by constructing 

roads to attract industry to undeveloped areas, and estabVerDate Mar 15 2010 19:23 Feb 18, 2012 Jkt 019006 PO 00000 Frm 00028 Fmt 6601 Sfmt 6601 E:\HR\OC\HR401.XXX HR401

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2 Economic Development: Efficiency and Effectiveness of Fragmented Programs Are Unclear: 

Hearing Before the Subcomm. on Economic Development, Public Building, and Emergency Management of the H. Comm. on Transportation and Infrastructure, 112th Cong. (2011) (prepared 

statement of William B. Shear, Director, Financial Markets and Community Investment, Government Accountability Office). 3 United States Census Bureau, Federal Aid to States for Fiscal Year 2010 at viii (Sept. 2011). 

4 Id. at 10. 5 Id. at 11. 6This statutory vagueness may nullify the bill’s application to states and localities. The Supreme Court has long held that ‘‘when Congress attaches conditions to a State’s acceptance of 

Federal funds, the conditions must be set out ‘unambiguously,’ ‘[L]egislation enacted pursuant 

to the spending power is much in the nature of a contract,’ and therefore, to be bound by ‘federally imposed conditions,’ recipients of Federal funds must accept them ‘voluntarily and knowingly.’ States cannot knowingly accept conditions of which they are ‘unaware’ or which they are 

‘unable to ascertain.’ ’’ Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 

(2006) (quoting Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)) (citations 

omitted). 

lishing business incubators to provide facilities for new 

business operations.2

For example, the U.S. Census Bureau reports that state and local governments received $63.9 billion from the Department of Transportation for fiscal year 2010, $30.3 billion of which was from the 

Highway Trust Fund.3 States received more than $7 billion in 

Community Development Block Grants and $66 million for Empowerment Zones and other economic development from the Department of Housing and Urban Development.4 States received 

more than $5 billion in capital programs from the Department of 

Housing and Urban Development.5

These are only a few examples of Federal funding that could be 

considered economic development funding.6

Whatever the actual total a state might receive, the loss of such 

funding for 2 years (or the requirement that a jurisdiction repay 

such funds) would necessarily be economically devastating. 

2. Even if a jurisdiction never exercised the power of eminent 

domain for any reason, the effect on its borrowing power 

would be catastrophic 

In light of the bill’s potential to bankrupt a jurisdiction, there is 

a serious risk that a reasonable bond underwriter could never be 

confident that a jurisdiction would not, at some future point during 

the life of the bond, engage in a prohibited taking, or convert a 

property taken by eminent domain to a prohibited use. The penalties would necessarily affect the ability of the jurisdiction to 

repay the bond. A prudent underwriter would therefore have to 

take this possibility into account and charge a substantial risk premium to protect investors from the possibility that this legislation 

might, in the future, impair a jurisdiction’s ability to repay. Moreover, a political subdivision would also be at risk that the state or 

county on which it is dependent for funding and services might 

incur the penalties, or that these units of government would face 

increased borrowing costs limiting their ability to aid a subdivision. 

B. The bill is purely punitive, and fails to provide relief to aggrieved 

property owners 

While the penalties imposed on states and localities by H.R. 1433 

are substantial, it will not permit the plaintiff to stop the taking 

before it happens and it will not compensate the plaintiff other 

than what is already authorized under applicable law. The only reVerDate Mar 15 2010 19:23 Feb 18, 2012 Jkt 019006 PO 00000 Frm 00029 Fmt 6601 Sfmt 6601 E:\HR\OC\HR401.XXX HR401

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7 H.R. 1433 § 4(b). 

8 H.R. 1433 § 4(c). 

9 Robert Caro, The Power Broker 967–8 (1974). 

10 H.R. 1433 § 9(1)(A)(I) permits ‘‘conveying private property to public ownership, such as for 

a road, hospital, airport, or military base.’’ 11 H.R. 1433 § 9(1)(A)(iv). 12 According to the company website: 

lief available is a ‘‘preliminary injunction or a temporary restraining order.’’ 7 A prevailing plaintiff may also recover costs, including 

reasonable attorney’s fees, and expert fees.8 As a result, the bill 

would give a prevailing plaintiff only the satisfaction of having 

bankrupted the community. 

During the markup, Representative Jerrold Nadler (D-NY) offered an amendment that would have allowed an owner or tenant 

to bring an action as soon as she ‘‘received notice of a final determination that an action to take such owner’s property by eminent 

domain in violation of section 2 will proceed or . . . [i]f the property is used for economic development in violation of section 2 following the taking of that property by eminent domain.’’ It would 

have permitted a prevailing plaintiff to ‘‘obtain appropriate declaratory, injunctive, or monetary relief to enforce any provision of this 

Act.’’ The amendment would have prevented an unlawful taking 

and provided both permanent injunctive relief and any applicable 

damages. The amendment was rejected by voice vote. 

II. THE PROHIBITIONS IN H.R. 1433 ARE VAGUE, AND ARE BOTH OVER

INCLUSIVE AND UNDER INCLUSIVE

Abuses of the eminent domain power have not been confined to 

economic development projects. Public works, such as highways 

and other projects explicitly covered by this legislation, have also 

had a disproportionate impact on low-income and minority communities. As Robert Caro in his seminal work on urban political 

power, The Power Broker, observed: 

[D]uring the 7 years since the end of World War II, there 

had been evicted from their homes in New York City for 

public works . . . some 170,000 persons. . . . If the number of persons evicted for public works was eye-opening, so 

were certain of their characteristics. Their color for example. A remarkably high percentage of them were [African 

American] or Puerto Rican. Remarkably few of them were 

white. Although the 1950 census found that only 12 percent of the city’s population was nonwhite, at least 37 percent of the evictees . . . and probably far more were 

nonwhite.9

Because the definition of a prohibited taking for economic development purposes explicitly exempts these types of public works, H.R. 

1433 would allow many of these past abuses to continue with no 

restrictions.10

H.R. 1433 would also permit many projects where private property is taken and conveyed to another private party. For example, 

pipelines are exempt from the bill’s prohibitions,11 including the 

controversial Keystone Pipeline, which is planned to extend from 

Montana to Texas.12 The company has already begun seeking to seVerDate Mar 15 2010 19:23 Feb 18, 2012 Jkt 019006 PO 00000 Frm 00030 Fmt 6601 Sfmt 5602 E:\HR\OC\HR401.XXX HR401

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The proposed Keystone Gulf Coast Expansion Project is an approximate 2,673-kilometre 

(1,661-mile), 36-inch crude oil pipeline that would begin at Hardisty, Alberta and extend southeast through Saskatchewan, Montana, South Dakota and Nebraska. It would 

incorporate a portion of the Keystone Pipeline (Phase II) through Nebraska and Kansas 

to serve markets at Cushing, Oklahoma before continuing through Oklahoma to a delivery point near existing terminals in Nederland, Texas to serve the Port Arthur, Texas 

marketplace. 

TransCanada Working with State of Nebraska and Department of State to Finalize New Route 

for Keystone XL through Nebraska, available at: http://www.transcanada.com/keystone.html 

(last visited Feb. 12, 2012). 13Leslie Kaufman & Dan Frosch, Eminent Domain Fight Has a Canadian Twist, N.Y. TIMES, Oct. 17, 2011, available at http://www.nytimes.com/2011/10/18/us/transcanada-in-eminent-domain-fight-over-pipeline.html?pagewanted=all. 14Michael Avok, Nebraska Lawmakers Debate Pipeline Eminent Domain Rules, Reuters, Nov 

8, 2011, available at http://www.reuters.com/article/2011/11/09/us-usa-pipeline-nebraskaidUSTRE7A80MA20111109. 15 H.R. 1433 § 9(1)(A)(ii). 16Frank James, Texas Sports Plan Means Homes Will Have to Go: Some Feel Drop-kicked by 

Eminent Domain, Invoked to Obtain Land for a New Cowboys Stadium, CHICAGO TRIB., July 

18, 2005, available at http://articles.chicagotribune.com/2005-07-18/news/0507180187l1l eminent-domain-private-property-property-rights. 17 Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo, 93 MINN. L. 

REV. 2100, 2101 (2009). 18 Norwood v. Horney, 853 N.E.2d 1115 (Ohio 2006) (public use requirement in state constitution not met by economic development purpose); Board of County Comm’rs v. Lowery, 136 P.3d 

639, 651 (Okla. 2006) (because state constitution places stricter limits on eminent domain than 

the Federal constitution, the state could not condemn easement for water pipelines to service 

private electric-generation plant, as that would be a taking for private use); Benson v. South 

Dakota, 710 N.W.2d 131, 146 (S.D. 2006) (dictum that state constitution does not recognize 

‘‘public benefit’’ category and permits taking only for ‘‘use by the public’’). 

cure land along the right of way using eminent domain, even 

though the project has not yet received the necessary permits,13

which has prompted action at the state and local level.14

Representative Mike Quigley (D-IL) offered an amendment requiring the completion of a public report by the relevant local environmental authority that has considered ‘‘the cumulative greenhouse gas emissions impacts of the pipeline over a 50-year time 

frame and whether existing pipeline capacity is adequate’’ and ‘‘the 

impacts of the project to minority and low-income populations’’ before eminent domain could move forward for this purpose. The 

amendment was rejected by voice vote. 

The bill would also permit the use of eminent domain to seize 

private property and give it to a private developer for the purpose 

of constructing a sports stadium or shopping mall.15 Localities have 

long used eminent domain to build stadia, including the city of Arlington, Texas, which exercised eminent domain to facilitate the 

construction of the stadium for the Texas Rangers in which George 

W. Bush was, at the time, a part owner.16 Representative Nadler 

offered an amendment that would have dropped the term ‘‘public 

facility’’ from the list of exemptions to prevent such an eventuality, 

but it was rejected by a vote of 10–18. 

III. H.R. 1433 IS AN ASSAULT ON STATES’ RIGHTS

Since the Kelo decision, approximately 43 states have enacted 

some sort of legislation in response.17 At least three state supreme 

courts have read the public purpose prong of their states’ constitutions more narrowly than the Supreme Court has read the Takings 

Clause in the U.S. Constitution.18

Testifying before the Constitution Subcommittee, Professor John 

Echeverria of Vermont Law School explained that the legislation is 

unnecessary because nearly every state had enacted legislation in 

response to the Kelo decision. In his testimony, he provided a reVerDate Mar 15 2010 19:23 Feb 18, 2012 Jkt 019006 PO 00000 Frm 00031 Fmt 6601 Sfmt 6601 E:\HR\OC\HR401.XXX HR401

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19Private Property Rights Protection Act of 2011: Hearing on H.R. 1433 Before the Subcomm. 

on the Const. of the H. Comm. on the Judiciary, 112th Cong. (2012) at 32, n. 1. (testimony Professor John Echeverria). 20 545 U.S. at 474 (2005). 21See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (state’s purpose of eliminating social and economic evils of a land oligopoly a public purpose); Berman v. Parker, 348 

U.S. 26 (1954) (elimination of blight a public purpose); Fallbrook Irrigation Dist. v. Bradley, 164 

U.S. 112 (1896) (irrigation of arid land a public purpose). 22 545 U.S. at 477–8. 23 Id. at 478. 24 545 U.S. at 506 (O’Connor, J., dissenting). 25 Id. at 508 (Thomas, J., dissenting). 

view of the form that response has taken. He explained the importance of the use of eminent domain for public purposes, as contemplated by the Constitution, and urged that the Federal Government should not substitute its judgment for that of the states.19

While some may have believed, in the wake of the Kelo decision, 

that Federal action was necessary, at this point, states have responded, and Congress should not substitute its judgment for that 

of the states. 

IV. THE PROPONENTS OF H.R. 1433 HAVE MISINTERPRETED

THE KELO DECISION

In Kelo, the Supreme Court held that the municipality’s use of 

eminent domain to implement its area redevelopment plan aimed 

at invigorating a depressed area was a ‘‘public use’’ within the 

meaning of the takings clause of the Fifth Amendment to the Constitution, even though some of the property would be turned over 

from private homeowners and business owners to private developers.20 The majority opinion was grounded on a century of Supreme Court precedent holding that ‘‘public use’’ must be read 

broadly to mean ‘‘for a public purpose.’’ 21

In declining to rule that economic development does not qualify 

as a ‘‘public use,’’ the Court nonetheless noted some limitations. 

‘‘[T]he City would no doubt be forbidden from taking petitioners’ 

land for the purpose of conferring a private benefit on a particular 

private party . . . Nor would the City be allowed to take property 

under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.’’ 22 The Court also noted that 

the taking by New London was ‘‘executed pursuant to a ‘carefully 

considered’ development plan.’’ 23

The Kelo dissenters and the proponents of H.R. 1433, however, 

argue that even a broad reading of ‘‘public use’’ does not extend to 

private-to-private transfers solely to improve the tax base and create jobs.24 For example, the dissent observed that the ‘‘most natural reading of the Clause is that it allows the government to take 

property only if the government owns, or the public has a legal 

right to use, the property, as opposed to taking it for any public 

purpose or necessity whatsoever.’’ 25 As Justice Thomas explained: 

Allowing the government to take property solely for public 

purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal 

guarantees that these losses will fall disproportionately on 

poor communities. Those communities are not only systematically less likely to put their lands to the highest and 

best use, but are also the least politically powerful. If ever 


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33 

26 Id. at 521 (citations omitted). 27 Id. 28 Id. at 478. 29 Id. at 503. 

there were justification for intrusive judicial review of constitutional provisions that protect ‘discrete and insular minorities,’ surely that principle would apply with great force 

to the powerless groups and individuals the Public Use 

Clause protects.26

What the Kelo dissenters and the proponents of H.R. 1433 fail to 

acknowledge, however, is that the majority decision specifically excluded ‘‘extending the concept of public purpose to encompass any 

economically beneficial goal,’’ 27 and, more specifically stated that 

‘‘the City would no doubt be forbidden from taking petitioners’ land 

for the purpose of conferring a private benefit on a particular private party.’’ 28 Whatever the Kelo decision may stand for, it most 

certainly does not resemble the overwrought descriptions of it permitting the ‘‘State [to] replac[e] any Motel 6 with a Ritz-Carlton, 

any home with a shopping mall, or any farm with a factory.’’ 29

CONCLUSION

The power of eminent domain is subject to abuse and must be 

exercised with great care. We also recognize that the courts have 

a role in determining whether that power has been exercised for a 

genuinely public purpose rather than a mere pretext to confer a 

private benefit on another private party. The states have responded 

to the Kelo decision in the intervening years, and we do not believe 

that Congress should now substitute its own judgment for that of 

the states. 

Even if we were to consider the restrictions in this legislation to 

be appropriate, the ruinous penalties imposed by the bill, and the 

significant economic disruption it would likely impose on state and 

local finances, would be disastrous and provide no actual benefit to 

aggrieved homeowners and tenants. 

For these reasons, and those stated above, we respectfully dissent, and urge our colleagues to reject this harmful legislation. 

JOHN CONYERS, JR. 

JERROLD NADLER. 

ROBERT C. ‘‘BOBBY’’ SCOTT. 

Æ 


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