39–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 113–357 

PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2013 

FEBRUARY 25, 2014.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. GOODLATTE, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 1944] 

[Including cost estimate of the Congressional Budget Office] 

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

(H.R. 1944) to protect private property rights, having considered 

the same, reports favorably thereon without amendment and recommends that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 13 

Committee Consideration ........................................................................................ 13 

Committee Votes ...................................................................................................... 13 

Committee Oversight Findings ............................................................................... 14 

New Budget Authority and Tax Expenditures ...................................................... 14 

Congressional Budget Office Cost Estimate .......................................................... 14 

Duplication of Federal Programs ............................................................................ 16 

Disclosure of Directed Rule Makings ..................................................................... 16 

Performance Goals and Objectives ......................................................................... 16 

Advisory on Earmarks ............................................................................................. 16 

Section-by-Section Analysis .................................................................................... 16 

Dissenting Views ..................................................................................................... 20 


jbell on DSK7SPTVN1PROD with REPORTS
2 

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 Kelo, 545 U.S. at 497 (O’Connor, J., dissenting). 5 Id. at 494. 6 H. Res. 340, 109th Cong. 

7Two national polls conducted in the fall of 2005 showed that 81% and 95% of respondents 

were opposed to Kelo. American Farm Bureau Federation Survey, Oct. 29-Nov. 2, 2005, Zogby 

Purpose and Summary 

The Private Property Rights Protection Act preserves the constitutional protections for private property jeopardized by the Supreme Court’s decision in Kelo v. City of New London. 1 It does this 

by conditioning state and local governments’ receipt of Federal economic development funds on their restraint from using eminent domain to transfer private property from one private owner to another for the purpose of economic development. If a state, or political subdivision of a state, uses its eminent domain power to take 

property for private 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. The bill’s provisions are enforceable through a private right of action or through 

an action brought by the Attorney General of the United States. 

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

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 Kelo, a resolution expressing grave disapproval of 

the Court’s decision was approved by the House of Representatives 

on June 30, 2005, by a vote of 365–33.6 Moreover, public opinion 

polling showed that Americans from across racial, ethnic, partisan, 

and gender lines condemned the decision.7 Disapproval of Kelo was 


jbell on DSK7SPTVN1PROD with REPORTS
3 

International (showing 95 percent of respondents disagreed with the Court’s ruling in Kelo); The 

Saint Index Poll, Oct.-Nov. 2005, Center for Economic and Civic Opinion at the University of 

Massachusetts/Lowell (showing 81 percent of respondents disagreed with the ruling). 8 H.R. 4128, 109th Cong. 

9 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). 10 John Locke, Second Treatise § 124 (emphasis added). ‘‘It is very clear that the founders 

shared Locke’s and Blackstone’s affection for private property, which is why they inserted the 

eminent domain provision in the Bill of Rights.’’ Richard A. Epstein, Takings: Private Property 

and the Power of Eminent Domain 29 (1985); see also James W. Ely, Jr., ‘‘The Constitution and 

Economic Liberty,’’ 35 Harv. J. L. & Pub. Pol’y 27, 29–30 (2012) (‘‘John Locke and the Whig 

emphasis on the rights of property owners profoundly influenced the founding generation.’’). 11 Ely, supra note 9, at 40. 12 1 The Records of the Federal Convention of 1787 at 147 (Max Farrand ed., 1937). 13The 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.’’). 14 James Madison, Property (1792), reprinted in James Madison:Writings 515 (Jack N. Rakove 

ed., 1999). 

expressed by 77% of men, 84% of women, 82% of whites, 72% of 

African-Americans, and 80% of Hispanics. The decision was also 

opposed by 79% of Democrats, 85% of Republicans, and 83% of 

Independents. Furthermore, advocacy groups ranging from the 

NAACP to the Libertarian Party and from the AARP to the American Farm Bureau Federation stood in opposition to the Court’s decision. 

On November 3, 2005, this widespread condemnation of the Kelo 

decision led 157 Democrats to join 218 of their Republican colleagues in the House to pass the Private Property Rights Protection Act, by a 376 to 38 vote margin.8 Last Congress, by voice vote, 

the House once again passed this legislation. Regrettably, the Senate has failed to act on this important legislation. H.R. 1944 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 ownership of private property 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.’’ 9 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.’’ 10 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.’’ 11

James Madison asserted at the Constitutional Convention that 

‘‘the primary objects of civil society are the security of property and 

public safety’’ 12 and, in the Federalist Papers, that ‘‘[g]overnment 

is instituted no less for the protection of property than of . . . individuals.’’ 13 Thus, Madison believed that a government ‘‘which 

[even] indirectly violates [individuals’] property in their actual possessions, is not a pattern for the United States.’’ 14 Indeed, according to John Adams, ‘‘[p]roperty must be secured or liberty cannot 


jbell on DSK7SPTVN1PROD with REPORTS
4 

15 6 John Adams, The Works of John Adams 280 (Charles Francis Adams, ed. 1850); see also 

Arthur Lee, ‘‘An Appeal to the Justice and Interests of the People of Great Britain,’’ in The 

Present Dispute with America 14 (4th ed. 1775) (‘‘The right of property is the guardian of every 

other right, and to deprive a people of this, is in fact to deprive them of their liberty.’’). 16 Hon. Loren A. Smith, ‘‘Life, Liberty, & Whose Property?: An Essay on Property Rights,’’ 30 

U. Rich. L. Rev. 1055, 1056 (1996). 17 Vanhorne’s Lessee v. Dorrance, 2 U.S. 304, 310 (1795). 18Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 657 (1829). 19 United States v. James Daniel Good Real Property, 510 U.S. 43, 61 (1993) 20Lynch v. Household Finance, 405 U.S. 538, 552 (1972). 

exist.’’ 15 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, 

life, liberty and property, the whole preamble is about protecting the citizens rights in property and property in 

rights.16

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.’’ 17 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.’’ 18

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.’’ 19 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.’’ 20

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 


jbell on DSK7SPTVN1PROD with REPORTS
5 

21See Bernard H. Siegan, Property and Freedom 20–21 (1997). 22 Kelo, 545 U.S. at 510–11 (Thomas, J. dissenting) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 

386, 388 (1798)). 23Wilkinson, 27 U.S. (2 Pet.) at 658. 24Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 531 (1868). 25Olcott v. The Supervisors, 83 U.S. (15 Wall.) 678, 694 (1872). 26See, 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). 27See, 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). 28 Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984); Berman v. Parker, 348 U.S. 26 

(1954). 

controversies exceeding twenty dollars (Seventh Amendment); and 

the prohibition of excessive bails and fines (Eighth Amendment).21

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.’’ 22 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 

a constitutional exercise of legislative power in any state in the 

union.’’ 23 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.’’ 24 Moreover, the Supreme Court, 

in 1872, declared that ‘‘[t]he right of eminent domain nowhere justifies taking property for a private use.’’ 25 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 a 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.26

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.27 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.28

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 


jbell on DSK7SPTVN1PROD with REPORTS
6 

29 Kelo, 545 U.S. at 473. 30 Id. at 475. 31 Id. at 483. 32 Id. at 478. 33 Id. at 480 (emphasis added). 34 Id. at 494 (O’Connor, J., dissenting). 35 Id. at 501. 36 Id. at 510 (Thomas, J., dissenting). 

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.’’ 29 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.’’ 30

In fact, the Court refused to 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 deference.’’ 31

Thus, because the takings were part of ‘‘a ‘carefully considered’ development plan,’’ 32 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.’’ 33

C. The Dissenting Opinions in Kelo 

Justice O’Connor, joined by Chief Justice Rehnquist 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.’’ 34

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.’’ 35 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.’’ 36

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 


jbell on DSK7SPTVN1PROD with REPORTS
7 

37 Id. at 518 (Thomas, J., dissenting) (citations omitted). 38 Id. at 497 (O’Connor, J., dissenting). 39 Id. at 505. 40 Id. at 503. 

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 

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

homes themselves are not. 37

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.’’ 38 Moreover, as 

is discussed in the next section, the dissenting opinions predicted 

that the effects of 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.’’ 39

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.’’ 40 In fact, according to a 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 signifiVerDate Mar 15 2010 02:08 Feb 27, 2014 Jkt 039006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6601 E:\HR\OC\HR357.XXX HR357

jbell on DSK7SPTVN1PROD with REPORTS
8 

41Dick M. Carpenter II & John K. Ross, Victimizing the Vulnerable at 6 (2007). 42See, 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). 43 Kelo, 545 U.S. at 521–22 (Thomas, J., dissenting). 

cantly less income, and significantly more of them live at 

or below the Federal poverty line.41

Other recent studies show that areas populated by the poor and 

minorities are far more likely to be targeted for condemnation than 

other neighborhoods.42 These studies confirm Justice Thomas’s 

strong statement in dissent that, 

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.43

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 enterVerDate Mar 15 2010 02:08 Feb 27, 2014 Jkt 039006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6601 E:\HR\OC\HR357.XXX HR357

jbell on DSK7SPTVN1PROD with REPORTS
9 

44 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. 45 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)). 46 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)). 47 American Farmland Trust Policy Update (July 6, 2005). 48 Brief Amici Curiae of the American Farm Bureau Federation et al., 2004 WL 2787138, at 

*2–*4. 49 Id. 50 Id. 

prises could construct superstores, casinos, hotels, and office parks.44

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 vulnerable to being taken under the rationale approved by the Supreme Court in favor of for-profit, tax-generating 

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.’’’ 45

Moreover, 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.46

In addition, 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.’’ 47 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.’’ 48 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.’’ 49 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.’’ 50

E. Post-Kelo State-level Eminent Domain Reform Is Insufficient 


jbell on DSK7SPTVN1PROD with REPORTS
10 

51 As a result of public backlash, 43 states enacted legislation intended to curb economic development takings in the years after the Kelo decision. 52The Civil Rights Implications of Eminent Domain Abuse: Hearing Before the U.S. Commission on Civil Rights (2011) (statement of Ilya Somin); see also James W. Ely, Jr., Post-Kelo Reform: Is the Glass Half-Full or Half-Empty?, 17 Sup. Ct. Econ. Rev. 127 (2009). 53 H.R. 1944, the ‘‘Private Property Rights Protection Act’’: Hearing Before the Subcomm. on 

the Constitution and Civil Justice of the H. Comm. on the Judiciary, 113th Cong. (2013) (testimony of David Beito, Professor, University of Alabama). 54 Id. 55 Id. (statement of Scott Bullock, Senior Attorney, Institute for Justice). 

The Kelo decision generated a massive public backlash that led 

most states to enact some sort of eminent domain reform.51 Some 

have argued that these state-level reforms have greatly diminished 

the problem of eminent domain abuse and, therefore, legislation at 

the Federal level, such as the Private Property Rights Protection 

Act, is unnecessary. However, as one eminent domain scholar has 

observed: 

Unfortunately, the majority of the new reform laws are 

likely to be ineffective, imposing few or no meaningful constraints on the use of eminent domain. Many of them forbid takings that transfer property to private parties for 

‘‘economic development,’’ but allow virtually identical condemnations to continue under other names. For example, 

numerous states continue to allow ‘‘blight’’ condemnations 

under definitions of blight so broad that virtually any area 

qualifies. 

Many of the states that have enacted ineffective postKelo reforms or no reforms at all are among those that 

make the most extensive use of eminent domain for the 

benefit of private interests. They include such large states 

as California, New York, New Jersey, and Texas.52

What is more, most state eminent domain reform measures were 

enacted as regular legislation—they were not embedded into state 

constitutions. Eminent domain reforms that are not enshrined into 

state constitutions will always be subject to repeal or exception at 

the whim of state legislators. For example, recent legislation in 

Alabama rolled back one of the first state post-Kelo eminent domain reform laws. According to testimony received by the Subcommittee on the Constitution, ‘‘[i]n the wake of national outrage 

after the Court’s decision, [Alabama] was one of the first to enact 

a corrective reform which, at least on paper, greatly limited eminent domain for private purposes. Only last month, however, our 

state reversed course and gutted a key element of this reform.’’ 53

The new Alabama law ‘‘expressly allows the deployment of eminent 

domain to benefit the automotive industry and other private interests.’’ 54

In short, despite state-level reforms, ‘‘eminent domain abuse is 

still a problem, and Federal money continues to support the use of 

eminent domain for private commercial development.’’ 55 Accordingly, Federal eminent domain legislation, like the Private Property Rights Protection Act, is still needed to curb abusive economic 

development takings. 

F. Private Property Rights Protection Act 

The Private Property Rights Protection Act protects property 

owners by restricting the ability of state and local governments to 


jbell on DSK7SPTVN1PROD with REPORTS
11 

56See Section 726 of the Transportation, Treasury, Housing and Urban Development, the Judiciary, and independent Agencies Appropriations Act of 2006 (Pub. L. No. 109–115) (prohibiting 

the use of funds made available by that Act for projects that seek to use the power of eminent 

domain, unless eminent domain is employed only for a public use); Statement of Scott Bullock, 

supra note 53 (‘‘Congress’s previous efforts to restrict the use of certain Federal funds for eminent domain . . . have unfortunately been ineffective.’’). 

take private property for economic development purposes if they 

elect to receive Federal economic development funds. Specifically, 

section 2(a) of the bill provides that: 

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. 

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, that state or political subdivision is ineligible to receive Federal economic development funds for 2 fiscal 

years following a judicial determination that law has been violated: 

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). 

In addition, section 3 prohibits the Federal Government from exercising its eminent domain power for economic development purposes. 

Because previous congressional efforts to restrict the ability of 

federal, state, and local governments from using certain Federal 

funds for economic development takings proved largely ineffective,56 the bill provides for a private right of action and an action 

by the Attorney General of the United States to enforce the bill’s 

provisions. The private right of action provides that: 

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. 

Similarly, the Attorney General enforcement provision provides 

that if the Federal Government or a state or local government fails 

to cure a violation of the Act within 90 days of being notified of the 


jbell on DSK7SPTVN1PROD with REPORTS
12 

57South 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) (internal quotations omitted). 58 Id. at 207–208. 59 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2602 (2012). 60Sabri v. United States, 541 U.S. 600, 606 (2004). 

violation, 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.’’ 

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 public uses. Traditional 

public uses include those in which the condemned land is actually 

‘‘used’’ by the public, such as for a public road, school, or military 

base. The bill also includes express exceptions for the transfer of 

property 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 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 help eliminate economic development takings in those states and political subdivisions that elect to 

receive Federal economic development funds. Congress’s 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’s 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.’’ 57

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.’’ 58 The Act does nothing 

more than use Congress’s ‘‘spending power to create incentives for 

States to act in accordance with’’ 59 the pre-Kelo understanding of 

‘‘public use.’’ And the fact that the Act’s condition on Federal 

spending applies beyond economic development projects that are directly funded by Federal money is simply an acknowledgement that 

‘‘[m]oney is fungible.’’ 60

The bill denies states or localities that abuse eminent domain all 

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


jbell on DSK7SPTVN1PROD with REPORTS
13 

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 that 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 choose to 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, if a locality abuses its eminent domain powers, only the 

locality, and not the whole state, would lose its economic development funds. 

Finally, the bill includes a provision providing that the Act does 

not become effective until the start of the first fiscal year following 

its enactment in order to provide states and localities with sufficient lead time within which to come into compliance with the Act, 

and the Act’s prohibitions do not apply to any project for which 

condemnation proceedings have been initiated prior to the date of 

enactment. 

Hearings 

The Committee’s Subcommittee on the Constitution and Civil 

Justice held a hearing on H.R. 1944, on April 18, 2013. Testimony 

was received from Susette Kelo, the lead plaintiff in Kelo v. City 

of New London; David Beito, Professor, University of Alabama, and 

Chair, Alabama State Advisory Committee of the U.S. Commission 

on Civil Rights; Julia Trigg Crawford, farm owner and manager, 

Sumner, Texas; and Scott Bullock, Senior Attorney, Institute for 

Justice. 

Committee Consideration 

On June 4, 2013, the Subcommittee on the Constitution and Civil 

Justice met in open session and ordered the bill H.R. 1944 favorably reported, without amendment, by a vote of 5 to 3, a quorum 

being present. On June 12, 2013, the Committee met in open session and ordered the bill H.R. 1944 favorably reported, without 

amendment, by voice vote, 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 there were 

no recorded votes during the Committee’s consideration of H.R. 

1944. 


jbell on DSK7SPTVN1PROD with REPORTS
14 

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. 1944, 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, June 27, 2013. 

Hon. BOB GOODLATTE, 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. 1944, the ‘‘Private Property Rights Protection Act of 2013.’’ 

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) and Melissa Merrell (for state and local impact), who 

can be reached at 226–2800. 

Sincerely, 

DOUGLAS W. ELMENDORF, 

DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 1944—Private Property Rights Protection Act of 2013. 

As ordered reported by the House Committee on the Judiciary 

on June 27, 2013. 

H.R. 1944 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 


jbell on DSK7SPTVN1PROD with REPORTS
15 

right to bring legal actions seeking enforcement of those provisions, 

and the bill would waive states’ Constitutional immunity to such 

suits. Finally, H.R. 1944 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. 

The Federal Government provides economic development assistance to state and local governments through several programs, including the Community Development Block Grant Program, the Social Services Block Grant Program, Economic Development Administration Grants, Department of Agriculture grants and loans, and 

grants made by the regional commissions. CBO estimates that expenditures from those major programs totaled more than $7 billion 

in 2012 (although, depending on how the term is interpreted, some 

of those expenditures may not meet the definition of economic development under the bill). 

CBO expects that few state and local governments would receive 

reduced Federal assistance because the use of eminent domain for 

the purposes targeted by the bill would be infrequent. Therefore, 

CBO estimates that implementing this legislation would have no 

significant net effect on those expenditures to state and local governments over the next 5 years. We estimate that additional reporting by the Attorney General would cost less than $500,000 over 

the next 5 years, assuming appropriation of the necessary amounts. 

Enacting H.R. 1944 would not affect direct spending or revenues; 

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

H.R. 1944 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA), 

but it 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 the bill’s provisions 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. 

Many states have amended their constitutions or enacted laws to 

directly or indirectly prohibit the use of eminent domain for economic development purposes. Furthermore, the bill would provide 

several exceptions, including takings for public use, for public 

rights of way, for utilities, to acquire abandoned property, and to 

remove immediate threats to public health and safety. While data 

on eminent domain is difficult to obtain at the national level, evidence suggests that its use solely for economic development purposes is minimal compared to other purposes, such as public infrastructure projects (which would be allowed under the bill without 

penalty). Finally, CBO expects that most state and local governments would not risk the loss of Federal economic development assistance by exercising the use of eminent domain in situations described by the bill. 

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 2 years. In those cases, CBO 


jbell on DSK7SPTVN1PROD with REPORTS
16 

expects that property would be returned or replaced (which would 

reinstate eligibility) or that assistance would instead be provided to 

other eligible entities. Any change in the pace of spending would 

be insignificant, CBO estimates. 

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

Federal costs) and Melissa Merrell (for state and local impact). The 

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

Duplication of Federal Programs 

No provision of H.R. 1944 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

Disclosure of Directed Rule Makings 

The Committee estimates that H.R. 1944 specifically directs to be 

completed no specific rule makings within the meaning of 5 U.S.C. 

§ 551. 

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. 1944, 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. 1944 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 2013.’’ 

Section 2. Prohibition on eminent domain abuse by States. 

Subsection (a) prohibits States and political subdivisions of 

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

eminent domain) from exercising the 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. 

Subsection (b) provides that 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 


jbell on DSK7SPTVN1PROD with REPORTS
17 

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 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. 

Subsection (c) provides that a State or political subdivision can 

regain its eligibility to receive Federal economic development funds 

if such State or political subdivision returns all real property the 

taking of which was found by a court 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. 

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

Section 3 provides that neither the Federal Government nor any 

authority of the Federal Government shall exercise its power of 

eminent domain for economic development purposes. 

Section 4. Private right of action. 

Subsection (a) provides that any owner of private property who 

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

may bring an action to enforce any provision of this Act in the appropriate Federal or State court. Additionally, this subsection provides that a property owner claiming a violation of this Act may 

seek relief through a preliminary injunction or a temporary restraining order. 

Subsection (b) provides a 7-year statute of limitations from the 

conclusion of condemnation proceedings for actions brought pursuant to this Act. 

Subsection (c) provides that 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. 

Section 5. Reporting of Violations to Attorney General. 

Section 5 provides that 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. 

Section 6. Notification by Attorney General. 

Subsection (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 


jbell on DSK7SPTVN1PROD with REPORTS
18 

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. 

Subsection (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. 

Subsection (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. 

Subsection (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 has a duty to protect the property rights of rural 

Americans. 

Section 9. Sense of Congress. 

Section 9 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 10. Religious and Nonprofit Organizations. 

Section 10 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. 

Section 11. Report by Federal Agencies on Regulations and Procedures Relating to Eminent Domain. 

Section 11 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 


jbell on DSK7SPTVN1PROD with REPORTS
19 

bring its rules, regulations, and procedures into compliance with 

this Act. 

Section 12. Sense of Congress. 

Section 12 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 13. Disproportionate Impact. 

Section 13 requires the Attorney General to use reasonable efforts to locate former owners and tenants of a property that is 

taken in violation of the Act, if the violation has a disproportionate 

impact on the poor or minorities. 

Section 14. Definitions. 

Section 14 contains the following 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, except that such term shall 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 

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 ‘‘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 15. Limitation on Statutory Construction. 

Section 15 provides that noting 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 16. Broad construction. 

Section 16 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 the Act and the Constitution. 


jbell on DSK7SPTVN1PROD with REPORTS
20 

Section 17. Severability and effective date. 

Subsection (a) provides for a severability clause. Subsection (b) 

provides that the Act shall take effect upon the first day of the first 

fiscal year that begins after the date of the enactment, but shall 

not apply to any project for which condemnation proceedings have 

been initiated prior to the date of enactment. 

Dissenting Views 

H.R. 1944, 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. 1944 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 would get 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. 1944, 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: 

Sec. 1. Short Title. This section designates the short title of the 

bill as the ‘‘Private Property Rights Protection Act of 2013.’’ 

Sec. 2. Prohibition on Eminent Domain Abuse By States. This 

section prohibits states and political subdivisions from exercising 

eminent domain for economic development within 7 years of the exercise of eminent domain if Federal economic development funds 


jbell on DSK7SPTVN1PROD with REPORTS
21 

are received during any fiscal year in which the property is so used 

or intended to be used. A violation, if found by a court of competent 

jurisdiction, will 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 will withhold the funds, and if a violation occurs after funds 

have been distributed, a state or political subdivision will have to 

reimburse the appropriate Federal agency. States and political subdivisions will 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. A state must also pay applicable penalties and interest to retain eligibility. 

Sec. 3 Prohibition on Eminent Domain Abuse By the Federal 

Government. This section prohibits the Federal Government from 

exercising eminent domain for economic development. 

Sec. 4. Private Right of Action. This section provides any private 

property owner or tenant who has suffered an injury as a result of 

a violation of this Act with a private right of action in the appropriate state or Federal court. A private property owner or tenant 

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 shall be entitled to reasonable attorney’s 

fees. Costs, and expert fees are included as part of the attorney’s 

fees. This section also waives a state’s 11th Amendment immunity 

from suit in Federal court. 

Sec. 5. This section 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 shall conduct an investigation. If the AG 

finds a violation, the AG must notify the governmental entity of the 

finding of a violation. The governmental entity will have 90 to demonstrate that no violation has occurred, or to cure the violation by 

returning the property, rebuilding any property destroyed, and repairing any property damaged. If not, the AG ‘‘will bring an action’’ 

unless the property owner or tenant has already brought an action. 

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. 

Sec. 6. Notification By Attorney General. This section gives the 

Attorney General the responsibility for providing states with the 

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

under this Act no later than 30 days after the Act’s enactment. 

The Attorney General 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 DOJ website no later than 120 days after the Act’s enactment. Finally, the Attorney General 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 

DOJ website no later than 30 days after the date of the Act’s enactment. 

Sec. 7. Reports. This section requires the Attorney General 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 this Act. The report will identify all 


jbell on DSK7SPTVN1PROD with REPORTS
22 

private actions brought as a result of a state or political subdivision’s violation of this Act. The report will also 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. The report will also identify the 

percentage of minority residents compared to the surrounding nonminority residents and the median incomes of those impacted by a 

violation of the Act. The report will also identify violations reported 

to the AG, and actions brought by the AG. Finally, the report will 

discuss all instances in which a state or political subdivision has 

cured a violation of the Act. States and localities are also required 

to report to the AG such information with respect to such state or 

locality as the AG needs to make the report. 

Sec. 8. This section expresses the sense of the Congress that Congress should protect the property rights of Americans, including 

those who reside in rural areas. 

Sec. 9. This section expresses 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. 

Sec. 10. Religious and Nonprofit Organizations. This section prohibits the states, localities, and the Federal Government 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. 

This section also specifies that a violation of its prohibitions 

would render the jurisdiction 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. 

Sec. 11. Report by Federal Agencies on Regulations and Procedures Relating to Eminent Domain. This section requires the head 

of each Executive department and agency to 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 the Act. 

Sec. 12. Sense of the Congress. This section expresses the Sense 

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

from survivors of Hurricane Katrina. 

Sec. 13. Disproportionate Impact. This section provides that, if a 

court determines that a violation of the Act has occurred, and that 

the violation has had 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. 

Sec. 14. Definitions. This section defines the term ‘‘economic development’’ for the purposes of identifying which exercises of eminent domain are prohibited under the Act. 

The term ‘‘economic development’’ means 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 


jbell on DSK7SPTVN1PROD with REPORTS
23 

for commercial enterprise carried on for profit, or to increase tax 

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

Several types of takings are explicitly excluded from the definition of ‘‘economic development.’’ 

—The conveying of private property for 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. 

—For use as a road or other right of way or means, open to the 

public for transportation, whether free or by toll. 

—For use as an aqueduct, flood control facility, pipeline, or similar use. 

—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, including a 

utility providing electric, natural gas, telecommunications, water, 

and wastewater services, either directly to the public or indirectly 

through provision of such services at the wholesale level for resale 

to the public. 

—Redeveloping of a brownfield site as defined in the Small Business Liability Relief and Brownfields Revitalization Act. 

This section also defines the term ‘‘federal economic development 

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

A ‘‘State’’ includes states, the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the 

United States. 

Sec. 15. Limitation on Statutory Construction. This section 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. 

Sec. 16. Broad Construction. This section requires that the Act 

be construed in favor of a broad protection of private property 

rights. 

Sec. 17. Severability and Effective Date. The section provides 

that the provisions of this Act shall be severable. This section also 

provides that this Act shall take effect upon the start of the first 

fiscal year following the enactment of this Act, but that the Act will 

not apply to any projects for which condemnation proceedings have 

been initiated prior to the date of enactment. 


jbell on DSK7SPTVN1PROD with REPORTS
24 

1 H.R. 1944 Sec. 6(a)(2). 

2 Congressional Budget Office, Cost Estimate for H.R. 1944, the ‘‘Private Property Rights Protection Act of 2013, as ordered reported by the House Committee on the Judiciary on June 

12, 2013,’’ (June 12, 2013) available at: http://cbo.gov/sites/default/files/cbofiles/attachments/ 

hr1944.pdf. 3 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). 

CONCERNS WITH H.R. 1944

I. THE PENALTY WILL FINANCIALLY CRIPPLE STATE AND LOCAL

GOVERNMENTS AND PROVIDE NO RELIEF TO PROPERTY OWNERS

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

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

States and localities currently rely of Federal funding for a significant portion of their budgets. Much of this could be deemed 

‘‘federal economic development funds.’’ Should the penalty actually 

be imposed on a jurisdiction, the loss in funding could easily render 

that jurisdiction insolvent, with catastrophic results. 

The bill does not identify which funds qualify as ‘‘federal economic development funds.’’ Rather, it requires the Attorney General to ‘‘compile a list of the Federal laws under which Federal economic development funds are distributed.’’ 1

According to the Congressional Budget Office, 

The Federal Government provides economic development 

assistance to state and local governments through several 

programs, including the Community Development Block 

Grant Program, the Social Services Block Grant Program, 

Economic Development Administration Grants, Department of Agriculture grants and loans, and grants made by 

the regional commissions. CBO estimates that expenditures from those major programs totaled more than $7 billion in 2012 (although, depending on how the term is interpreted, some of those expenditures may not meet the 

definition of economic development under the bill).2

The Government Accountability Office, however, has 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 establishing business incubators to provide facilities for new 

business operations.3

For example, the U.S. Census Bureau reports that state and local 

governments received $63.9 billion from the Department of TransVerDate Mar 15 2010 02:08 Feb 27, 2014 Jkt 039006 PO 00000 Frm 00024 Fmt 6659 Sfmt 6601 E:\HR\OC\HR357.XXX HR357

jbell on DSK7SPTVN1PROD with REPORTS
25 

4 United States Census Bureau, Federal Aid to States for Fiscal Year 2010 at viii (Sept. 2011). 

5 Id. at 10. 

6 Id. at 11. 

7This statutory vagueness may nullify the bill’s application to states and localities. The Supreme Court has long held that ‘‘Congress has broad power to set the terms on which it disburses Federal money to the States, but 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). 8 H.R. 1944 § 4(a). 

portation for fiscal year 2010, $30.3 billion of which was from the 

Highway Trust Fund.4

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.5 States received more than $5 billion in capital programs from the Department of Housing and Urban Development.6

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

considered economic development funding.7 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 still be catastrophic 

In light of the bill’s potential to bankrupt a jurisdiction, its ability to float bonds would be severely impaired. A reasonable bond 

underwriter would 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. Because the concomitant penalties would necessarily affect the ability of the jurisdiction to repay the bond, a 

prudent underwriter would have to take this possibility into account and charge a substantial risk premium to protect investors. 

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. As a result, even where the current administration foreswears the use of eminent domain, lenders would still have to lend 

as if the penalties might be imposed by the action of a future administration. 

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. 1944 

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 relief available is a ‘‘preliminary injunction or a temporary restraining order.’’ 8 In fact, the property owner or tenant may only bring 

an action ‘‘following the conclusion of any condemnation proceedings condemning the property of such property owner or tenVerDate Mar 15 2010 02:08 Feb 27, 2014 Jkt 039006 PO 00000 Frm 00025 Fmt 6659 Sfmt 6601 E:\HR\OC\HR357.XXX HR357

jbell on DSK7SPTVN1PROD with REPORTS
26 

9 H.R. 1933 § 4(b) (emphasis added). 

10 H.R. 1944 § 4(c). 11 H.R. 1944 § 4(b). 12 Amendment to H.R. 1944 offered by Rep. Jerrold Nadler. 13 Robert Caro, The Power Broker 967–8 (1974). 14 H.R. 1944 Sec. 14(1)(A)(I) permits ‘‘conveying private property to public ownership, such as 

for a road, hospital, airport, or military base.’’ 15 H.R. 1944 § 14(1)(A)(iv). 

ant.’’ 9 A prevailing plaintiff may also recover costs, including reasonable attorney’s fees, and expert fees.10 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 the condemnation commenced, rather 

than having to wait until ‘‘the property is used for economic development following the conclusion of any condemnation proceedings 

condemning the property of such property owner or tenant.’’ 11 Instead of the penalty, which would bankrupt the jurisdiction, the 

Nadler amendment would have allowed the plaintiff to obtain ‘‘equitable relief and compensatory damages.’’ 12 Unlike the underlying 

bill, 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. 1944 ARE VAGUE, AND WOULD PROHIBIT

TRADITIONAL USES OF EMINENT DOMAIN, AS WELL AS PERMIT

TAKINGS THAT, IN THE PAST, HAVE BEEN SUBJECT TO ABUSE

Abuses of the eminent domain power have not been confined to 

economic development projects of the kind prohibited by this legislation. In fact, some of the greatest abuses cited by critics of the 

Kelo decision have come about in the context of public works, such 

as highways and other projects explicitly permitted by this legislation. These projects have often 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.13

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

1944 would allow many of these past abuses to continue with no 

restrictions.14

H.R. 1944 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,15 including the 

controversial Keystone Pipeline, which is planned to extend from 


jbell on DSK7SPTVN1PROD with REPORTS
27 

16 According to the company website: 

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). 17Leslie 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. 18 Hearing on H.R. lll, the ‘‘Private Property Rights Protection Act,’’before the Subcomm. 

on the Const. and Civil Justice of the H. Comm. on the Judiciary, 113th Cong. (Apr. 18, 2013) 

(prepared testimony of Julia Trigg Crawford). 19 Id. at 1 (emphasis added). 20The bill would allow the exercise of eminent domain ‘‘conveying private property. . . . 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.’’ H.R. 1944 § 14(1)(A)(ii). Stadia and shopping 

malls are open to the public. Unlike a railroad, no admission is charged to the general public 

to enter a shopping mall. 21Frank 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/0507180187X1X 

eminent-domain-private-property-property-rights. 

Montana to Texas.16 The company has already begun seeking to secure land along the right of way using eminent domain, even 

though the project has not yet received the necessary permits.17

In testimony before the Subcommittee on the Constitution and 

Civil Justice, Julia Trigg Crawford, the third generation manager 

of her family farm in Sumner, Texas, whose land was taken for the 

Keystone XL Pipeline, explained why the extraordinary power of 

eminent domain should not be used for a project of this type.18

First, we don’t believe a foreign corporation should have 

more of a right to our land than we do. . . . We don’t 

want them horizontally drilling under the Bois d’Arc Creek 

where we have State-given water rights. We irrigate 400 

acres of crop land from this creek, and the pipeline would 

be just a couple hundred yards upstream from our pumps. 

Any leak from that pipeline would contaminate our equipment, and then our crops in minutes. . . . When we politely asked them to seek a way around us, TransCanada 

could have slightly altered their route and traversed that 

neighboring land differently, avoiding our property altogether. But instead they just pulled out the club of eminent 

domain.19

Ranking Member John Conyers, Jr. (D-MI), offered an amendment 

that would have added pipelines carrying tar sands to the list of 

takings prohibited by the bill. It was rejected by a 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.20

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.21


jbell on DSK7SPTVN1PROD with REPORTS
28 

22 CBO, supra note 2. 23 Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo, 93 Minn. L. 

Rev. 2100, 2101 (2009). 24 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’’). 25Private 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 of 

Professor John Echeverria). 26 132 S.Ct. 2566 (2012). 

III. H.R. 1944 IS AN ASSAULT ON STATES’ RIGHTS

Using the leverage of a catastrophic cut in Federal aid, this bill 

would usurp a power traditionally exercised by states. The Congressional Budget Office has observed, 

[H.R. 1944] would impose significant new conditions on the 

receipt of Federal economic development assistance by 

state and local governments. . . . Because the bill’s provisions 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. . . . CBO expects that most state and local governments would not risk the loss of Federal economic development assistance by exercising the use of eminent domain 

in situations described by the bill.22

This unprecedented intrusion of the Federal Government into land 

use decisions is unnecessary. Since the Kelo decision, approximately 43 states have enacted some sort of legislation in response.23 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.24

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 review 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.25

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. 

This bill also exceeds the constraints that the Supreme Court has 

placed on the exercise of Congress’ spending clause powers. There 

is no nexus between the funds received and the action the proponents hope to regulate with this legislation. 

Most recently, the Supreme Court greatly constrained Congress’ 

powers to regulate state conduct by attaching conditions to the receipt of Federal funds. In its decision in National Federation of 

Independent Business v. Sebelius,26 striking down the Medicaid expansion in the Affordable Care Act, the Court observed, 


jbell on DSK7SPTVN1PROD with REPORTS
29 

27 Id. at 2603–4. 28 545 U.S. at 474 (2005). 29See, 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). 30Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co. 240 U.S. 30, 32 

(1916) (Delegation of state power of eminent domain to power company for the purpose of building a dam a public use within the meaning of the Takings Clause). 

We have upheld Congress’s authority to condition the receipt of funds on the States’ complying with restrictions on 

the use of those funds, because that is the means by which 

Congress ensures that the funds are spent according to its 

view of the ‘‘General Welfare.’’ Conditions that do not here 

govern the use of the funds, however, cannot be justified 

on that basis. When, for example, such conditions take the 

form of threats to terminate other significant independent 

grants, the conditions are properly viewed as a means of 

pressuring the States to accept policy changes.27

In the case of this legislation, the project affected by the bill need 

not have received economic development funds at all. Even the 

agency undertaking the project need not have received any Federal 

economic development funds to trigger the bill’s restrictions. The 

jurisdiction need only have received any Federal economic development funds for any purpose no matter how unrelated to the project 

itself, even if the jurisdiction received only a de minimus amount 

of such funds. The connection between the receipt of funds and the 

prohibited activity is simply too tenuous, if it exists at all, to satisfy the Court’s restriction in Sibelius. 

IV. THE PROPONENTS OF H.R. 1944 HAVE MISINTERPRETED

THE KELO DECISION

In Kelo, the Supreme Court held that the municipality’s use of 

eminent domain to implement its 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.28

The majority opinion was grounded in a century of Supreme 

Court precedent holding that ‘‘public use’’ must be read broadly to 

mean ‘‘for a public purpose.’’ 29

As early as 1916, the Supreme Court held that ‘‘public use,’’ 

within the meaning of the Takings Clause, included ‘‘for a public 

purpose.’’ As Justice Holmes wrote for the Court, 

[T]o gather the streams from waste and to draw from them 

energy, labor without brains, and so to save mankind from 

toil that it can be spared, is to supply what, next to intellect, is the very foundation of all our achievements and all 

our welfare. If that purpose is not public, we should be at 

a loss to say what is. The inadequacy of use by the general 

public as a universal test is established.30

In declining to rule that economic development does not qualify as 

a ‘‘public use,’’ the Court in Kelo 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 


jbell on DSK7SPTVN1PROD with REPORTS
30 

31 545 U.S. at 477–8. 32 Id. at 478. 33 545 U.S. at 506 (O’Connor, J., dissenting). 34 Id. at 508 (Thomas, J., dissenting). 35 Id. at 521 (citations omitted). 36 Id. 37 Id. at 478. 38 Id. at 503. 

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.’’ 31

The Court also noted that the taking by New London was ‘‘executed pursuant to a ‘carefully considered’ development plan.’’ 32

The Kelo dissenters and the proponents of H.R. 1944, 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.33 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.’’ 34

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 

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.35

What the Kelo dissenters and the proponents of H.R. 1944 fail to 

acknowledge, however, is that the majority decision specifically excluded ‘‘extending the concept of public purpose to encompass any 

economically beneficial goal,’’ 36 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.’’ 37

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.’’ 38

CONCLUSION

The Constitution recognizes that the power of eminent domain is 

subject to abuse and must be exercised with great care. We recognize that the courts have an important 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 by narrowing their own powers, and the powers 

of their subdivisions, to take property, and we do not believe that 


jbell on DSK7SPTVN1PROD with REPORTS
31 

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 would be 

disastrous for state and local finances 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. 

MELVIN L. WATT. 

Æ 


jbell on DSK7SPTVN1PROD with REPORTS