49–006 

109TH CONGRESS REPT. 109–262 " ! HOUSE OF REPRESENTATIVES 1st Session Part 2 

PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2005 

NOVEMBER 3, 2005.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

SUPPLEMENTAL REPORT 

together with 

ADDITIONAL AND DISSENTING VIEWS 

[To accompany H.R. 4128] 

[Including cost estimate of the Congressional Budget Office] 

This supplemental report shows the markup transcript with respect to the bill (H.R. 4128), as reported, which was not included 

in part 1 of the report submitted by the Committee on the Judiciary on October 31, 2005 (H. Rept. 109–262, pt. 1). 

Due to the brief period of time between the markup and floor 

consideration of H.R. 4128, the transcript was unavailable for inclusion in H. Rept. 109–262, Part 1. Chairman Sensenbrenner has 

long maintained that the inclusion of the markup transcript in the 

Committee report provides important public insight into Committee 

consideration of legislation reported to the full House. To that end, 

the Committee is filing a supplemental report to H.R. 4128 to ensure that the Committee’s markup transcript is available in the 

public record. 

CONTENTS 

Page 

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

Purpose and Summary ............................................................................................ 4 

Background .............................................................................................................. 4 

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

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

Vote of the Committee ............................................................................................. 13 

Committee Oversight Findings ............................................................................... 15 

New Budget Authority and Tax Expenditures ...................................................... 15 

2 

Congressional Budget Office Cost Estimate .......................................................... 15 

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

Constitutional Authority Statement ...................................................................... 17 

Section-by-Section Analysis and Discussion .......................................................... 17 

Changes in Existing Law Made by the Bill, as Reported ..................................... 20 

Markup Transcript .................................................................................................. 20 

Additional Concurring Views .................................................................................. 79 

Dissenting Views ..................................................................................................... 81 

THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Private Property Rights Protection Act of 2005’’. 

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

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

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

development or over property that is subsequently used for economic development, 

if that State or political subdivision receives Federal economic development funds 

during any fiscal year in which it does so. 

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

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

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

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

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

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

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

Government, or component thereof. 

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

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

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

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

damaged as a result of such violation. 

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

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

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

SEC. 4. PRIVATE RIGHT OF ACTION. 

(a) CAUSE OF ACTION.—Any 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, and a State shall 

not be immune under the eleventh amendment to the Constitution of the United 

States from any such action in a Federal or State court of competent jurisdiction. 

Any such property owner may also seek any appropriate relief through a preliminary injunction or a temporary restraining order. 

(b) LIMITATION ON BRINGING ACTION.—An action brought under this Act may be 

brought if the property is used for economic development following the conclusion 

of any condemnation proceedings condemning the private property of such property 

owner, but shall not be brought later than seven years following the conclusion of 

any such proceedings and the subsequent use of such condemned property for economic development. 

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

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

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

SEC. 5. NOTIFICATION BY ATTORNEY GENERAL. 

(a) NOTIFICATION TO STATES AND POLITICAL SUBDIVISIONS.— (1) Not later than 30 days after the enactment of this Act, the Attorney General shall provide to the chief executive officer of each State the text of this Act 

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

(2) Not later than 120 days after the enactment of this Act, the Attorney General shall compile a list of the Federal laws under which Federal economic development funds are distributed. The Attorney General shall compile annual reVerDate Aug 31 2005 06:33 Nov 04, 2005 Jkt 049006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6621 E:\HR\OC\HR262P2.XXX HR262P2
3 

visions of such list as necessary. Such list and any successive revisions of such 

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

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

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

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

for the taking. 

(b) NOTIFICATION TO PROPERTY OWNERS.—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. 

SEC. 6. REPORT. 

Not later than 1 year after the date of enactment of this Act, and every subsequent year thereafter, the Attorney General shall transmit a report identifying 

States or political subdivisions that have used eminent domain in violation of this 

Act to the Chairman and Ranking Member of the Committee on the Judiciary of 

the House of Representatives and to the Chairman and Ranking Member of the 

Committee on the Judiciary of the Senate. The report shall—

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

(2) identify all 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; 

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

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

SEC. 7. SENSE OF CONGRESS REGARDING RURAL AMERICA. 

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

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

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

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

just compensation’’. 

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

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

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

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

to these uses. 

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

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

economic sectors of our economy. 

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

property owners, including rural land owners. 

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

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

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

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

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

economies, and the economy of the United States. Americans should not have to fear 

the government’s taking their homes, farms, or businesses to give to other persons. 

Governments should not abuse the power of eminent domain to force rural property 

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

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

the face of eminent domain abuse. 

SEC. 8. DEFINITIONS. 

In this Act the following definitions apply: 

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

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

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

not include—

(A) conveying private property to public ownership, such as for a road, 

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

4 

1The Federalist No. 54, at 370 (Jacob E. Cooke ed., 1961) (James Madison) see also James 

Madison, Property, National Gazette (Mar. 27, 1792), reprinted in 14 The Papers of James 

Madison 266 (Robert Rutland, et al. eds., 1983) (‘‘Government is instituted to protect property 

of every sort * * * This being the end of government, that alone is a just government, which 

impartially secures to every man, whatever is his own.’’). 2 Vanhorne’s Lessee v. Dorrance, 2 U.S. 304, 310 (1795). 

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. 

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

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

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

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

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

SEC. 9. SEVERABILITY AND EFFECTIVE DATE. 

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

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

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

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

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

date of enactment. 

SEC. 10. SENSE OF CONGRESS. 

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

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

SEC. 11. BROAD CONSTRUCTION. 

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

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

PURPOSE AND SUMMARY

The purpose of H.R. 4128, the ‘‘Private Property Rights Protection Act of 2005,’’ is to preserve the property rights granted to our 

Nation’s citizens under the Fifth Amendment of the Constitution 

following the Supreme Court’s decision in Kelo v. City of New London. 

BACKGROUND

The fundamental importance of private property rights 

The protection of private property rights lies at the foundation of 

American government. As James Madison wrote in the Federalist 

Papers, ‘‘[G]overnment is instituted no less for the protection of 

property than of the persons of individuals.’’ 1

In 1795, the Supreme Court clearly articulated our citizens’ fundamental right to private property under the Constitution when it 

declared: ‘‘possessing property, and having it protected, is one of 

the natural, inherent, and unalienable rights of man. * * *’’ 2 And 

as Justice Story explained years later, ‘‘That government can 

scarcely be deemed to be free, where the rights of property are left 

5 

3Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 657 (1829). 4Seventh Lincoln-Douglas debate, 15 October 1858; speech at Springfield, 26 June 1857; in 

Abraham Lincoln, Collected Works, ed. Roy P. Basler (New Brunswick: Rutgers University 

Press, 1953), 3:315; 2:405. 5Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972). 6 125 S.Ct. 2655 (2005). 

7 U.S. Const., Amend. V (emphasis added). 

8 Id. at 2659. 

9 Id. at 2660–61. 10 Id. at 2671 (O’Connor, J., dissenting). 

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.’’ 3

President Abraham Lincoln often spoke of how at the heart of 

the evil practice of slavery was a denial of property rights: ‘‘It is 

the same tyrannical principle,’’ he said. ‘‘It is the same spirit that 

says, ‘You work and toil and earn bread, and I’ll eat it.’ ’’ 4

More recently, the Supreme Court again rightly stated that ‘‘[t]he 

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.’’ 5 The sanctity and centrality of private property rights are 

thus ingrained in our constitutional design. 

The Supreme Court’s Kelo decision 

Notwithstanding this long history of the protection of private 

property rights, on June 23, 2005, the Supreme Court held in Kelo 

v. City of New London,6 that ‘‘economic development’’ was a ‘‘public 

use’’ under the Fifth Amendment’s Takings Clause, which provides 

that ‘‘nor shall private property be taken for public use without just 

compensation.’’ 7 As the Court described the motivation for the Government’s taking of private property: ‘‘the pharmaceutical company Pfizer Inc. announced that it would build a $300 million research 

facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the area’s rejuvenation.’’ 8 The Supreme 

Court held that these properties ‘‘were condemned only because 

they happen to be located in the development area,’’ and that the 

taking was constitutional because it ‘‘would be executed pursuant 

to a ‘carefully considered’ development plan.’’ 9

Justice O’Connor’s dissenting opinion correctly summarized the 

terrifying import of the Supreme Court’s decision, stating that ‘‘To 

reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render 

economic development takings ‘for public use’ is to wash out any 

distinction between private and public use of property—and thereby effectively to delete the words ‘for public use’ from the Takings 

Clause of the Fifth Amendment.’’ 10

The importance of the Takings Clause and its protection of property rights is that it ‘‘provid[es] safeguards against excessive, unpredictable, or unfair use of the government’s eminent domain 

power—particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process 

against the majority’s will. * * * The public use requirement * * * 

6 

11 Id. at 2672. 12 Id. at 2676. 13 As the National Association of Home Builders has stated, ‘‘In Kelo, the Supreme Court ruled 

that government entities can condemn any property in the name of ‘economic development.’ NAHB believes that it is proper to use eminent domain when the project is for public use, but 

it should not be used to transfer private property to another private owner for the purpose of 

‘upgrading’ the land * * * Kelo substantially weakens the rights of private land owners—the 

government can now take, for nearly any reason, your land, subject to just compensation. This 

decision has rightfully alarmed many Americans.’’ Letter from National Association of Home 

Builders to Members of Congress (June 30, 2005). 

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. This requirement promotes fairness as 

well as security.’’ 11

As the dissent points out, as a result of the majority’s decision, ‘‘The specter of condemnation hangs over all property. Nothing is 

to prevent the State from replacing any Motel 6 with a RitzCarlton, any home with a shopping mall, or any farm with a factory. * * * Today nearly all real property is susceptible to condemnation on the Court’s theory. * * * Any property may now be 

taken for the benefit of another private party, but the fallout from 

this decision will not be random. The beneficiaries 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. The 

Founders cannot have intended this perverse result.’’ 12

The Supreme Court’s Kelo decision threatens the most vulnerable 

Private business development can and does regularly occur without an eminent domain proceeding. Economic development of private property can take place without force, through voluntary negotiation. When the agreements regarding economic development 

cannot be reached, then economic development of private property 

can only occur for public purposes. Local governments have many 

different kinds of incentive, zoning, and code enforcement tools to 

promote economic development. The Kelo Court’s endorsement of 

the Government’s raw taking of entire tracts of private property 

from one private person to give to another private person who can 

put the land to some imagined more valuable use threatens to enshrine into law, in lieu of the free market a bureaucratic ‘‘command 

and control’’ of the economy long thought to have been relegated to 

the dustbin of history.13

African-Americans and the elderly 

The National Association for the Advancement of Colored People 

(‘‘NAACP’’) and the American Association of Retired Persons 

(‘‘AARP’’) stated in their amicus brief to the Supreme Court in the 

Kelo case that: 

[The] holding that government may take property from 

a private citizen for the purpose of giving it to another private party purely for ‘‘economic development’’ is both inconsistent with the language of the Constitution and dangerous. Elimination of the requirement that any taking be 

for a true public use will disproportionately harm racial 

7 

14 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–*4. 15 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 *6. 16 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 *7. 17 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 *7. 18 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 *9 (citing Bugryn v. City of Bristol, 774 A.2d 1042 (Conn. App. Ct. 2001), appeal 

denied, 776 A.2d 1143 (Conn. 2001), cert. denied, 534 U.S. 1019, 122 S. Ct. 544 (2001); David 

Firestone, ‘‘Black Families Resist Mississippi Land Push,’’ The New York Times (September 10, 

2001) at A20). 19See B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 28 (1989). 

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.14

To hold that the public use requirement is satisfied 

wherever there are potential economic benefits to be realized is to render the public use requirement meaningless.15

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 remova1.’’ 16

Well-cared-for properties owned by minority and elderly 

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

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

erect an industrial park.17 Several African-American families in Canton, Mississippi were similarly forced to leave 

the homes they had lived in for over sixty years to clear 

land for a Nissan automobile plant.18

Eminent domain abuse has a history of disproportionately impacting the minority community. For example, of all the families 

displaced by urban renewal from 1949 through 1963, 63 percent of 

those whose race was known were nonwhite.19 Racially changing 

neighborhoods that lacked institutional and political power were 

selected as blighted areas and designated for redevelopment 

8 

20See Wendell E. Pritchett, The ‘‘Public Menace’’ of Blight: Urban Renewal and the Private 

Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 6 (2003). 21 Id. at 21. 22 Id. at 47. 23See J. Wylie, Poletown: Community Betrayed 58 (1989). 24See County of Wayne v. Hathcock, 684 N.W.2d 765, 786 (Mich. 2004) (overruling Poletown v. Detroit, 304 N.W.2d 455 (Mich. 1981), in which the court upheld Detroit’s condemnation of 

the homes of approximately 3,438 persons, most of whom were elderly, retired, Polish-American 

immigrants, to build a General Motors plant). 25See Derek Werner, Note: The Public Use Clause, Common Sense and Takings, 10 B.U. Pub. 

Int. L.J. 335, 350 (2001). 26Letter from Martin Luther King III, President of the Southern Christian Leadership Council, to The Fort Trumbull Homeowners in New London, Connecticut (December 2, 2002). 27See, e.g., 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 A1 (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). 

through urban renewal programs.20 ‘‘The purpose behind the designation of certain areas as blighted was clear. Renewal advocates 

believed that the blighted land could be put to a ‘higher use’ under 

the right circumstances.’’ 21 As a result, ‘‘across the nation, inner 

city neighborhoods were designated as blighted, properties condemned, and land turned over to private properties.’’ 22

In 1981, urban planners in Detroit, Michigan, uprooted the largely lower-income and elderly Poletown neighborhood for the benefit 

of the General Motors Corporation.23 The Poletown condemnation 

became so notorious that the 1981 decision by the Michigan Supreme Court that upheld it was overturned by that same court just 

last year.24 In San Jose, California, ninety-five percent of the properties targeted for economic redevelopment are Hispanic or Asianowned, even though only thirty percent of businesses are owned by 

minorities.25

Martin Luther King III, a former president of the Southern 

Christian Leadership Conference, has said that ‘‘eminent domain 

should only be used for true public projects, not to take from one 

private owner to give to another wealthier private owner.’’ 26

Houses of worship 

Houses of worship and other religious institutions are, by their 

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

fundamental characteristics of religious institutions render their 

property singularly vulnerable to being taken under the rationale 

approved by the Supreme Court in favor of for-profit, tax-generating businesses. In addition, many other charitable organizations 

will face similar threats because of their tax-exempt status.27

The Becket Fund for Religious Liberty wrote in their amicus 

brief in the Kelo case: 

To affirm this broad expansion of eminent domain power 

[as the Supreme Court did] is to grant municipalities a 

special license to invade the autonomy of and take the 

property of religious institutions. Houses of worship and 

other religious institutions are, by their very nature, nonprofit and almost universally tax-exempt. These fundamental characteristics of religious institutions render their 

9 

28 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)). 29 Brief of Amicus Curiae the Becket Fund for Religious Liberty, 2004 WL 2787141, at *11. 30 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 condenmation 

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 condenmation 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 condenmation of a Goodwill thrift store in order to build a shopping center)). 

property singularly vulnerable to being taken under the 

rationale approved by the [Supreme Court]. Religious 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, taxgenerating 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.’’ 28

Because religious institutions are overwhelmingly nonprofit and tax-exempt, they will generate less in tax revenues than virtually any proposed commercial or residential 

use. Accordingly, when a municipality considers what 

properties should be included under condemnation plans 

designed to increase for-profit development and increase 

taxable properties, the non-profit, tax-exempt property of 

religious institutions will by definition always qualify and 

always be vulnerable to seizure.29

It bears noting that while religious institutions face additional eminent domain risks stemming from religious 

discrimination, many other charitable organizations will 

face similar dangers because of their tax-exempt status 

alone. Indeed, several charitable organizations have faced 

condemnation threats in recent years to satisfy municipal 

appetite for more tax revenue.30

Farmers 

According to the amicus brief filed in the Kelo case by the American Farm Bureau Federation: 

The farmer and rancher members of amici curiae own 

and lease significant amounts of land on which they depend for their livelihoods and upon which all Americans 

rely for food and other basic necessities. As 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. Thus, each of our members is threatened by 

the decision * * * with the loss of productive farm and 

ranch land solely to allow someone else to put it to a different private use * * * American farmers and ranchers 

need the protection of the Fifth Amendment if they are to 

find economically feasible ways to use their land and reVerDate Aug 31 2005 00:10 Nov 04, 2005 Jkt 049006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\HR262P2.XXX HR262P2
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31 Brief Amici Curiae of the American Farm Bureau Federation et al., 2004 WL 2787138, at 

*2–4. 

32 American Farmland Trust Policy Update (July 6, 2005). 33 John Harwood, ‘‘Poll Shows Division on Court Pick,’’ Wall Street Journal (July 15, 2005). 34Michael Corkery and Ryan Chittum, ‘‘Eminent-Domain Uproar Imperils Projects,’’ The Wall 

Street Journal (August 3, 2005) at B1. 35Gary Andres, ‘‘The Kelo Backlash: Americans Want Limits on Eminent Domain,’’ The Washington Times (August 29, 2005) at A21. 

main in the agriculture business—the business of feeding 

the American populace.31

And according to American Farmland Trust President Ralph 

Grossi, ‘‘With so much farmland on the urban edge and near cities 

still in steep decline, ex-urban towns could be tempted by this ruling to make farmland available for subdivisions.’’ 32

The American people resoundingly reject the Supreme Court’s Kelo 

decision 

The Supreme Court’s Kelo decision has been resoundingly criticized from all quarters. A resolution, H. Res. 340, expressing grave 

disapproval of the Kelo decision, was approved by the House of 

Representatives on June 30, 2005, by a vote of 365–33. 

The protection of private property rights is an issue of primary 

concern to Americans today. According to a Wall Street Journal/ 

NBC News poll, ‘‘In the wake of court’s eminent domain decision, 

Americans overall cite ‘private-property rights’ as the current legal 

issue they care most about.’’ 33 As reported in the Wall Street Journal: 

[T]he issue has struck a nerve with Americans. In Connecticut, where the Supreme Court case originated, a 

Quinnipiac University poll shows just how much the eminent-domain issue resonates. By an 11–to–1 margin, those 

surveyed said they opposed the taking of private property 

for private uses, even if it is for the public economic good. 

According to the poll, 89 percent of those surveyed were 

against condemnations for private economic development, 

compared with 8 percent for them. Douglas Schwartz, head 

of the poll, says he has never seen such a lopsided margin 

on any issue he has polled.34

Also, according to an American Survey poll conducted July 14– 17, 2005, among 800 registered voters nationwide: 

Passing legislation limiting the government’s ability to 

snatch private property should not be a heavy lift—especially if lawmakers listen to their constituents * * * Congressional action gets plenty of sympathy from constituents. Sixty-eight percent of registered voters favor legislative limits on the government’s ability to take private 

property away from owners. Public support for limiting the 

power of eminent domain is robust and cuts across demographic and partisan groups. 62 percent of self-identified 

Democrats, 74 percent of independents and 70 percent of 

Republicans support limits. Few issues in recent memory 

have mobilized citizens against a Supreme Court decision 

with such ferocity. 35 Then people were asked, ‘‘Congress is 

considering legislation that would say the Federal government cannot take private property for private commercial 

11 

36Gary Andres, ‘‘The Kelo Backlash: Americans Want Limits on Eminent Domain,’’ The Washington Times (August 29, 2005) at A21. Indeed, Americans’ confidence in the Supreme Court 

keeps getting worse. On June 21, 2005, the Gallup Poll released a survey in which it asked 

whether people had confidence in the Supreme Court. The survey concluded that the reported 

‘‘41% confidence rating is among the lowest Gallup has ever found for this institution, and it 

perpetuates a gradual decline in the public’s confidence over the past three years.’’ Joseph Carroll, Gallup Poll Assistant Editor, ‘‘Americans’ Confidence in High Court Declines’’ (June 21, 

2005). In fact, respect for the Supreme Court has dropped among citizens of all political dispositions, including conservatives, moderates, and liberals Id. 37Samantha Young, ‘‘Committee Tackles Court’s Property Ruling, the Las Vegas Review Journal (September 8, 2005) (‘‘Justice Stevens told the Clark County Bar Association that if he were 

a legislator instead of a judge bound by the law, he would have opposed the court’s ruling in 

the case, Kelo v. the City of New London’’). 38See South Dakota v. Dole, 483 U.S. 203 (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). 39 H.R. 4128 also provides that any two year penalty period will begin only after final judgment on the merits by a court that the state or locality has violated the terms of this legislation. 

development if homeowners object. It would also say State 

and local governments can NOT take private property for 

private commercial development against homeowners 

wishes if any federal funds are being used in the project. 

What about you, would you favor or oppose Congress placing these limits on the ability of government to take private property away from owners?’’ A resounding 68 percent 

favored such Congressional action. 36

Even Justice John Paul Stevens, who wrote the Kelo decision for 

the five Justice majority, has said publicly he has concerns about 

the results of that decision, if not the legal reasoning behind it. 

Justice Stevens recently told the Clark County, Nevada, Bar Association that if he were a legislator instead of a judge, he would 

have opposed the results of his own ruling by working to change 

current law. 37

H.R. 4128, the ‘‘Private Property Rights Protection Act’’

Property rights are civil rights. There can be no individual freedom without the power of an individual to control their own autonomy through the free use of their own property. The Supreme 

Court’s recent Kelo decision poses an immediate threat to that essential freedom, and the most likely victims will be the most vulnerable in our society if Congress does not act. 

Congress’ power to condition the use of Federal funds extends to 

prohibiting States and localities from receiving any Federal economic development funds for a specified period of time if such entities abuse their power of eminent domain, even if only State and 

local funds are used in that abuse of power. Such a broader penalty 

is an appropriate use of Congress’ spending power, as the Supreme 

Court has made clear that Congress may attach conditions to the 

receipt of any Federal funds provided such conditions are related 

to the ‘‘Federal interest in particular national projects or programs’’

and that they are ‘‘unambiguous.’’ 38

H.R. 4128 denies States or localities that abuse eminent domain 

all Federal economic development funds for a period of two years.39

Under such a penalty, there is a clear connection between the Federal funds that would be denied and the abuse Congress is intending to prevent: States or localities that have abused their eminent 

domain power by using ‘‘economic development’’ as an improper rationale for a taking should not be trusted with Federal taxpayer 

12 

40This is to allow enforcement of the Act if the government says it needs to use eminent domain to build a road, and it takes private property to do so, but then it never actually builds 

the road but instead gives the land to a large private company for use as a business. 41 Black’s Law Dictionary defines ‘‘common carrier’’ as an entity that is ‘‘generally required 

by law to transport * * * without refusal, if the approved fare or charge is paid.’’ Black’s Law 

Dictionary (8th ed. 2004). The term ‘‘as of right’’ is defined in Black’s Law Dictionary as ‘‘by 

virtue of a legal entitlement,’’ ibid, which is part of the criteria that defines a common carrier’s legal obligations, as a publicly regulated entity, to allow access to the public. A common carrier 

is something entirely different from, for example, a private shopping mall, which is not open 

to the public as of right, as a shopping mall generally has the right to exclude anybody from 

its premises. 

funds for other ‘‘economic development’’ projects which could themselves result in abusive takings of private property. 

To ensure that any conditioning of the use of Federal funds is 

unambiguous, H.R. 4128 includes a ‘‘notification’’ section that 

would require the Attorney General to compile a list of the Federal 

laws under which Federal economic development funds are distributed and communicate such list to the chief executive officer of 

each state (its Governors) and also make it available on the Internet for use by the public and by the authorities in each State and 

political subdivisions of each State empowered to take private property and convert it to public use subject to just compensation for 

the taking. That way, States and localities will be put on notice 

that if they receive any Federal funds under the listed Federal 

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

only the locality, and not the whole State, would suffer the punishment if only the locality abused its eminent domain powers. H.R. 

4128 also contains a definition of ‘‘Federal economic development 

funds’’ that the Department of Justice would use when putting together its list of those Federal laws that meet such definition. The 

notification provisions also provide that basic information about the 

legislation be made available to the public through the Department 

of Justice’s Internet website. 

H.R. 4128 provides States and localities with an opportunity to 

cure any violation before they lose any Federal economic development funds by either returning or replacing the improperly taken 

property. 

H.R. 4128 also includes an express private right of action to 

make certain that those suffering injuries for a violation of this legislation be allowed access to State or Federal court to enforce the 

provisions of the bill. Further, H.R. 4128 contains a statute of limitations of seven years following the conclusion of any condemnation 

proceedings improperly condemning the private property for an improper private use or any subsequent allowance of the use of such 

property for an improper private use.40

H.R. 4128 also includes a fee-shifting provision—identical to 

those in other civil rights laws—that allows a prevailing property 

owner to be awarded attorney and expert fees as part of the costs 

of bringing the litigation to enforce the bill’s provisions. 

H.R. 4128 also includes a definition of ‘‘economic development’’ that allows the types of takings that have traditionally been considered appropriate public uses. The bill also includes exceptions for 

the transfer of property to public ownership, and to common carriers 41 and public utilities, and for related things like pipelines. 

The bill also makes reasonable exceptions for the taking of land 

that is being used in a way that constitutes an immediate threat 

13 

to public health and safety. The bill also makes exceptions for: the 

merely incidental use of a public property by a private entity, such 

as a retail establishment on the ground floor in a public property; 

for 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. 

H.R. 4128 also includes a rule of broad construction that 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. 

Finally, H.R. 4128 includes a provision providing that the legislation would not become effective until the start of the first fiscal 

year following the enactment of the legislation in order to provide 

States and localities with sufficient lead time within which to come 

into compliance with the legislation, and in any case the legislation 

would not apply to any project for which condemnation proceedings 

have been initiated prior to the date of enactment. 

HEARINGS

The House Committee on the Judiciary held no hearings on H.R. 

4128. 

COMMITTEE CONSIDERATION

On October 25, 2005, the House Committee on the Judiciary received a referral of H.R. 4128. On October 27, 2005 the Committee 

met in open session and ordered favorably reported the bill H.R. 

4128 as amended to the House by a recorded vote of 27–3, a 

quorum being present. 

VOTE OF THE COMMITTEE

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

House of Representatives, the Committee sets forth the following 

rollcall votes that occurred during the Committee’s consideration of 

H.R. 4128. 

1. Nadler Amendment #1 to strike reference to public facility in 

H.R. 4128 was not agreed to by a vote of 7 ayes to 20 nays. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

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

Mr. Smith (Texas) ............................................................................................. X 

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

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

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

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

Mr. Jenkins ........................................................................................................ X 

Mr. Cannon ....................................................................................................... X 

Mr. Bachus ........................................................................................................ X 

Mr. Inglis ........................................................................................................... X 

Mr. Hostettler .................................................................................................... X 

Mr. Green .......................................................................................................... X 

Mr. Keller ........................................................................................................... X 

Mr. Issa ............................................................................................................. X 

Mr. Flake ...........................................................................................................

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

14 

ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Forbes .........................................................................................................

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

Mr. Feeney .........................................................................................................

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

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

Mr. Conyers ....................................................................................................... X 

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

Mr. Boucher .......................................................................................................

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

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

Mr. Watt ............................................................................................................ X 

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

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

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

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X 

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

Mr. Van Hollen .................................................................................................. X 

Ms. Wasserman Schultz .................................................................................... X 

Mr. Sensenbrenner, Chairman.

Total ................................................................................................ 7 20 

2. The motion to report the bill, H.R. 4128, favorably as amended to the House was agreed to by a rollcall vote of 27 yeas to 3 

nays. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

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

Mr. Smith (Texas) .............................................................................................

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

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

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

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

Mr. Jenkins ........................................................................................................ X 

Mr. Cannon ....................................................................................................... X 

Mr. Bachus ........................................................................................................ X 

Mr. Inglis ........................................................................................................... X 

Mr. Hostettler .................................................................................................... X 

Mr. Green .......................................................................................................... X 

Mr. Keller ........................................................................................................... X 

Mr. Issa ............................................................................................................. X 

Mr. Flake ...........................................................................................................

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

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

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

Mr. Feeney ......................................................................................................... X 

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

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

Mr. Conyers ....................................................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Boucher .......................................................................................................

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

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

Mr. Watt ............................................................................................................ X 

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

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

15 

ROLLCALL NO. 2—Continued 

Ayes Nays Present 

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

Mr. Meehan ....................................................................................................... X 

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X 

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

Mr. Van Hollen .................................................................................................. X 

Ms. Wasserman Schultz .................................................................................... X 

Mr. Sensenbrenner, Chairman.

Total ................................................................................................ 27 3 

COMMITTEE OVERSIGHT FINDINGS

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

House of Representatives, the Committee reports 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. 4128, the following estimate and comparison prepared 

by the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974. 

OCTOBER 31, 2005. 

Hon. F. JAMES SENSENBRENNER, Jr., 

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. 4128, the Private Property Rights Protection Act of 2005. 

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

to provide them. The CBO staff contacts are Gregory Waring (for 

federal costs) and Marjorie Miller (for the state and local impact). 

Sincerely, 

DOUGLAS HOLTZ-EAKIN. 

Enclosure. 

H.R. 4128—Private Property Rights Protection Act of 2005 

H.R. 4128 would deny federal economic development assistance 

to any state or local entity that uses the power of eminent domain 

for economic development and would prohibit federal agencies from 

engaging in this practice. The bill would specifically prohibit state 

and local governments from taking private property and conveying 

16 

or leasing that property to another private entity, either for a commercial purpose or to generate additional taxes, employment, or 

general economic health. A state or local government found to have 

violated this prohibition would be ineligible for certain federal economic development funds for two years, but could become eligible 

by returning or replacing the property. The bill would give private 

property owners the right to bring legal actions seeking enforcement of these provisions and would waive states’ constitutional immunity to such suits. 

CBO expects that implementing the bill would have no significant impact on the federal budget because most jurisdictions would 

not risk the economic development assistance they receive from the 

federal government by using eminent domain as described in the 

bill. Further, a few states are considering legislation that would restrict the authority of localities to take private property for economic development projects. Because the bill would deny certain 

economic assistance for up to two years to localities using eminent 

domain in a way proscribed in the bill, the pace of spending for 

some discretionary grant programs could be marginally reduced. 

Enacting the bill would not affect direct spending or revenues. 

H.R. 4128 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 these conditions would apply to a large pool of 

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

and would have a significant impact on local governments’ powers 

to manage land use in their jurisdictions. Further, state and local 

governments could incur significant additional legal expense to respond to private legal actions authorized by the bill. 

On October 19, 2005, CBO transmitted a cost estimate for H.R. 

3405, the Strengthening the Ownership of Private Property Act of 

2005, as ordered reported by the House Committee on Agriculture 

on October 7, 2005. H.R. 3405 contains similar provisions that 

would deny federal economic development assistance to any jurisdiction that uses the power of eminent domain for economic development. CBO also estimates that neither piece of legislation would 

have a significant impact on the federal budget. 

The CBO staff contacts for this estimate are Gregory Waring (for 

federal costs) and Marjorie Miller (for the state and local impact). 

This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

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

of the Rules of the House of Representatives, H.R. 4128 is designed 

to preserve the property rights granted to our Nation’s citizens 

under the Fifth Amendment of the Constitution following the Supreme Court’s decision in Kelo v. City of New London, which puts 

those rights in jeopardy. 

17 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in art. I, § 8, cl. 1 (the Spending Clause), art. I, § 8, cl. 3 of 

the Constitution, and § 5 of Amendment XIV. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following section-by-section analysis describes the bill as reported by the Committee on the Judiciary. 

Section 1. Short title 

Section 1 provides for the short title of the legislation, the ‘‘Private Property Rights Protection Act of 2005.’’

Section 2. Prohibition of eminent domain abuse by States 

Section 2(a) 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 or political subdivision receives Federal economic development funds during any fiscal year in which it does 

so. 

Section 2(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 for a 

period of two fiscal years following a final judgment on the merits 

by a court of competent jurisdiction that such subsection has been 

violated, and any Federal agency charged with distributing those 

funds shall withhold them for such two 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. 

Section 2(c) provides that a State or political subdivision shall 

not be ineligible for any Federal economic development funds under 

subsection (b) if such State or political subdivision returns all real 

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

damaged as a result of such violation. 

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

Section 3 provides that the Federal Government or any authority 

of the Federal Government shall not exercise its power of eminent 

domain to be used for economic development. 

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, and a State shall not be immune 

under the eleventh amendment to the Constitution of the United 

18 

States from any such action in a Federal or State court of competent jurisdiction. Any such property owner may also seek any appropriate relief through a preliminary injunction or a temporary restraining order. 

Subsection (b) provides that an action brought under this Act 

may be brought if the property is used for economic development 

following the conclusion of any condemnation proceedings condemning the private property of such property owner, but shall not 

be brought later than seven years following the conclusion of any 

such proceedings and the subsequent use of such condemned property for economic development. 

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. 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 

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. The Attorney General shall compile annual revisions of such list as necessary. Such list and any successive revisions of such list shall be 

communicated by the Attorney General to the chief executive officer of each State and also made available on the Internet website 

maintained by the United States Department of Justice for use by 

the public and by the authorities in each State and political subdivisions of each State empowered to take private property and 

convert it to public use subject to just compensation for the taking. 

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 6. Report 

Section 6 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. The report shall (1) identify all private rights of action 

brought as a result of a State’s or political subdivision’s violation 

of this Act; (2) identify all States or political subdivisions that have 

lost Federal economic development funds as a result of a violation 

of this Act, as well as describe the type and amount of Federal economic development funds lost in each State or political subdivision 

and the Agency that is responsible for withholding such funds; and 

19 

(3) discuss all instances in which a State or political subdivision 

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

Section 7. Sense of Congress regarding rural America 

Section 7 contains findings and a Sense of Congress that the use 

of eminent domain for the purpose of economic development is a 

threat to agricultural and other property in rural America and that 

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

Section 8. Definitions 

Section 8 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 9. Severability and effective date 

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

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

first fiscal year that begins after the date of the enactment of this 

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

Section 10. Sense of Congress 

Section 10 contains a Sense of Congress providing 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. 

20 

Section 11. Broad construction 

Section 11 provides that the Act shall be construed in favor of 

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

CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED

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

House of Representatives, the Committee notes that H.R. 4128 

makes no changes to existing law. 

MARKUP TRANSCRIPT

BUSINESS MEETING 

THURSDAY, OCTOBER 27, 2005 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:06 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Howard 

Coble, acting Chair, presiding. 

Mr. COBLE. I note the presence of a working quorum and we will 

come to order. 

Before we start, I want to advise Members of the Committee that 

the Chairman’s sister-in-law died as a result of an accident last 

night, and he will not be able to be here today. But we will proceed 

accordingly. I have been pressed into duty here, so we will do the 

best we can today, folks. 

[Intervening business.] 

Mr. COBLE. [presiding.]: The Committee on the Judiciary will 

again come to order. Pursuant to notice, I call up the bill H.R. 

4128, the ‘‘Private Protection’’—the ‘‘Private Property Protection 

Act of 2005’’ for purposes of markup and move its favorable recommendation to the House. Without objection, the bill will be considered as read and open for amendment at any point. 

[The bill, H.R. 4128, follows:] 

21 

1

I

109TH CONGRESS

1ST SESSION H. R. 4128

To protect private property rights.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 25, 2005

Mr. SENSENBRENNER (for himself, Mr. GOODLATTE, Mr. CONYERS, Ms. WATERS, Mr. BONILLA, Ms. HERSETH, Mr. DELAY, and Mr. BLUNT) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To protect private property rights.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Private Property

5 Rights Protection Act of 2005’’.

6 SEC. 2. PROHIBITION ON EMINENT DOMAIN ABUSE BY

7 STATES.

8 (a) IN GENERAL.—No State or political subdivision

9 of a State shall exercise its power of eminent domain, or

10 allow the exercise of such power by any person or entity

11 to which such power has been delegated, over property to


I4128.AAB
22 

2

•HR 4128 IH

1 be used for economic development or over property that

2 is subsequently used for economic development, if that

3 State or political subdivision receives Federal economic de4 velopment funds during any fiscal year in which it does

5 so.

6 (b) INELIGIBILITY FOR FEDERAL FUNDS.—A viola7 tion of subsection (a) by a State or political subdivision

8 shall render such State or political subdivision ineligible

9 for any Federal economic development funds for a period

10 of 2 fiscal years following a final judgment on the merits

11 by a court of competent jurisdiction that such subsection

12 has been violated, and any Federal agency charged with

13 distributing those funds shall withhold them for such 2-

14 year period, and any such funds distributed to such State

15 or political subdivision shall be returned or reimbursed by

16 such State or political subdivision to the appropriate Fed17 eral agency or authority of the Federal Government, or

18 component thereof.

19 (c) OPPORTUNITY TO CURE VIOLATION.—A State or

20 political subdivision shall not be ineligible for any Federal

21 economic development funds under subsection (b) if such

22 State or political subdivision returns all real property the

23 taking of which was found by a court of competent juris24 diction to have constituted a violation of subsection (a)


I4128.AAC
23 

3

•HR 4128 IH

1 and replaces any other property destroyed and repairs any

2 other property damaged as a result of such violation.

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

4 FEDERAL GOVERNMENT.

5 The Federal Government or any authority of the Fed6 eral Government shall not exercise its power of eminent

7 domain to be used for economic development.

8 SEC. 4. PRIVATE RIGHT OF ACTION.

9 (a) CAUSE OF ACTION.—Any owner of private prop10 erty who suffers injury as a result of a violation of any

11 provision of this Act may bring an action to enforce any

12 provision of this Act in the appropriate Federal or State

13 court, and a State shall not be immune under the eleventh

14 amendment to the Constitution of the United States from

15 any such action in a Federal or State court of competent

16 jurisdiction. Any such property owner may also seek any

17 appropriate relief through a preliminary injunction or a

18 temporary restraining order.

19 (b) LIMITATION ON BRINGING ACTION.—An action

20 brought under this Act may be brought if the property

21 is used for economic development following the conclusion

22 of any condemnation proceedings condemning the private

23 property of such property owner, but shall not be brought

24 later than seven years following the conclusion of any such


I4128.AAD
24 

4

•HR 4128 IH

1 proceedings and the subsequent use of such condemned

2 property for economic development.

3 (c) ATTORNEYS’ FEE AND OTHER COSTS.—In any

4 action or proceeding under this Act, the court shall allow

5 a prevailing plaintiff a reasonable attorneys’ fee as part

6 of the costs, and include expert fees as part of the attor7 neys’ fee.

8 SEC. 5. NOTIFICATION BY ATTORNEY GENERAL.

9 (a) NOTIFICATION TO STATES AND POLITICAL SUB10 DIVISIONS.—

11 (1) Not later than 30 days after the enactment

12 of this Act, the Attorney General shall provide to the

13 chief executive officer of each State the text of this

14 Act and a description of the rights of property own15 ers under this Act.

16 (2) Not later than 120 days after the enact17 ment of this Act, the Attorney General shall compile

18 a list of the Federal laws under which Federal eco19 nomic development funds are distributed. The Attor20 ney General shall compile annual revisions of such

21 list as necessary. Such list and any successive revi22 sions of such list shall be communicated by the At23 torney General to the chief executive officer of each

24 State and also made available on the Internet

25 website maintained by the United States DepartVerDate Aug 31 2005 00:10 Nov 04, 2005 Jkt 049006 PO 00000 Frm 00024 Fmt 6659 Sfmt 6601 E:\HR\OC\HR262P2.XXX HR262P2

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5

•HR 4128 IH

1 ment of Justice for use by the public and by the au2 thorities in each State and political subdivisions of

3 each State empowered to take private property and

4 convert it to public use subject to just compensation

5 for the taking.

6 (b) NOTIFICATION TO PROPERTY OWNERS.—Not

7 later than 30 days after the enactment of this Act, the

8 Attorney General shall publish in the Federal Register and

9 make available on the Internet website maintained by the

10 United States Department of Justice a notice containing

11 the text of this Act and a description of the rights of prop12 erty owners under this Act.

13 SEC. 6. REPORT.

14 Not later than 1 year after the date of enactment

15 of this Act, and every subsequent year thereafter, the At16 torney General shall transmit a report identifying States

17 or political subdivisions that have used eminent domain

18 in violation of this Act to the Chairman and Ranking

19 Member of the Committee on the Judiciary of the House

20 of Representatives and to the Chairman and Ranking

21 Member of the Committee on the Judiciary of the Senate.

22 The report shall—

23 (1) identify all private rights of action brought

24 as a result of a State’s or political subdivision’s vio25 lation of this Act;


I4128.AAF
26 

6

•HR 4128 IH

1 (2) identify all States or political subdivisions

2 that have lost Federal economic development funds

3 as a result of a violation of this Act, as well as de4 scribe the type and amount of Federal economic de5 velopment funds lost in each State or political sub6 division and the Agency that is responsible for with7 holding such funds; and

8 (3) discuss all instances in which a State or po9 litical subdivision has cured a violation as described

10 in section 2(c) of this Act.

11 SEC. 7. SENSE OF CONGRESS REGARDING RURAL AMERICA.

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

13 (1) The founders realized the fundamental im14 portance of property rights when they codified the

15 Takings Clause of the Fifth Amendment to the Con16 stitution, which requires that private property shall

17 not be taken ‘‘for public use, without just compensa18 tion’’.

19 (2) Rural lands are unique in that they are not

20 traditionally considered high tax revenue-generating

21 properties for state and local governments. In addi22 tion, farmland and forest land owners need to have

23 long-term certainty regarding their property rights

24 in order to make the investment decisions to commit

25 land to these uses.


I4128.AAG
27 

7

•HR 4128 IH

1 (3) Ownership rights in rural land are funda2 mental building blocks for our Nation’s agriculture

3 industry, which continues to be one of the most im4 portant economic sectors of our economy.

5 (4) In the wake of the Supreme Court’s deci6 sion in Kelo v. City of New London, abuse of emi7 nent domain is a threat to the property rights of all

8 private property owners, including rural land own9 ers.

10 (b) SENSE OF CONGRESS.—It is the sense of Con11 gress that the use of eminent domain for the purpose of

12 economic development is a threat to agricultural and other

13 property in rural America and that the Congress should

14 protect the property rights of Americans, including those

15 who reside in rural areas. Property rights are central to

16 liberty in this country and to our economy. The use of

17 eminent domain to take farmland and other rural property

18 for economic development threatens liberty, rural econo19 mies, and the economy of the United States. Americans

20 should not have to fear the government’s taking their

21 homes, farms, or businesses to give to other persons. Gov22 ernments should not abuse the power of eminent domain

23 to force rural property owners from their land in order

24 to develop rural land into industrial and commercial propVerDate Aug 31 2005 00:10 Nov 04, 2005 Jkt 049006 PO 00000 Frm 00027 Fmt 6659 Sfmt 6601 E:\HR\OC\HR262P2.XXX HR262P2

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8

•HR 4128 IH

1 erty. Congress has a duty to protect the property rights

2 of rural Americans in the face of eminent domain abuse.

3 SEC. 8. DEFINITIONS.

4 In this Act the following definitions apply:

5 (1) ECONOMIC DEVELOPMENT.—The term

6 ‘‘economic development’’ means taking private prop7 erty, without the consent of the owner, and con8 veying or leasing such property from one private

9 person or entity to another private person or entity

10 for commercial enterprise carried on for profit, or to

11 increase tax revenue, tax base, employment, or gen12 eral economic health, except that such term shall not

13 include—

14 (A) conveying private property to public

15 ownership, such as for a road, hospital, or mili16 tary base, or to an entity, such as a common

17 carrier, that makes the property available for

18 use by the general public as of right, such as

19 a railroad, public utility, or public facility, or

20 for use as a right of way, aqueduct, pipeline, or

21 similar use;

22 (B) removing harmful uses of land pro23 vided such uses constitute an immediate threat

24 to public health and safety;


I4128.AAI
29 

9

•HR 4128 IH

1 (C) leasing property to a private person or

2 entity that occupies an incidental part of public

3 property or a public facility, such as a retail es4 tablishment on the ground floor of a public

5 building;

6 (D) acquiring abandoned property; and

7 (E) clearing defective chains of title.

8 (2) FEDERAL ECONOMIC DEVELOPMENT

9 FUNDS.—The term ‘‘Federal economic development

10 funds’’ means any Federal funds distributed to

11 States or political subdivisions of States under Fed12 eral laws designed to improve or increase the size of

13 the economies of States or political subdivisions of

14 States.

15 (3) STATE.—The term ‘‘State’’ means each of

16 the several States, the District of Columbia, the

17 Commonwealth of Puerto Rico, or any other terri18 tory or possession of the United States.

19 SEC. 9. SEVERABILITY AND EFFECTIVE DATE.

20 (a) SEVERABILITY.—The provisions of this Act are

21 severable. If any provision of this Act, or any application

22 thereof, is found unconstitutional, that finding shall not

23 affect any provision or application of the Act not so adju24 dicated.


I4128.AAJ
30 

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•HR 4128 IH

1 (b) EFFECTIVE DATE.—This Act shall take effect

2 upon the first day of the first fiscal year that begins after

3 the date of the enactment of this Act, but shall not apply

4 to any project for which condemnation proceedings have

5 been initiated prior to the date of enactment.

Æ


I4128.AAK
31 

Mr. COBLE. The Chair recognizes himself for 5 minutes to explain the bill. 

This is—I will read Chairman Sensenbrenner’s statement. 

I bring up for markup today H.R. 4128, the ‘‘Private Property 

Rights Protection Act of 2005,’’ which is co-sponsored in addition to 

the Chairman, by Mr. Goodlatte, along with Ranking Member Conyers and Ms. Waters. 

On June 23rd, the Supreme Court, in a 5–4 decision in Kelo v. 

City of New London, held that economic development can be a public use under the fifth amendment’s ‘‘taking clause.’’ In doing so, 

the Supreme Court allowed the Government to take perfectly fine 

property from one small homeowner and give it to a large corporation for a private research facility. 

As the dissent in that case pointed out, under the majority’s 

opinion, any property may now be taken for the benefit of another 

private party. The government now has license to transfer property 

from those with fewer resources to those with more. 

The Founders cannot have intended this perverse result. 

The NAACP and the AARP have said the takings that result 

from the Court’s decision will disproportionately affect and harm 

the economically disadvantaged, and in particular racial and ethnic 

minorities and the elderly. And the representatives of religious organizations have stated that 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 as singularly vulnerable to being taken under the 

rationale approved by the Supreme Court. 

The public reaction to the Kelo decision was swift and strong. 

The protection of private property rights is the number one issue 

that concerns Americans today, according to the Wall Street Journal-NBC News poll, by an 11 to 1 margin. Americans say they oppose the taking of private property for private uses, even if it is for 

public economic good. 

According to an American Survey poll, public property for limiting the power of eminent domain is robust and cuts across demographic and partisan groups. Even Justice John Paul Stevens, who 

wrote the Kelo decision for the 5-Justice majority, recently told the 

Clark County, Nevada, Bar Association that if he were a legislator 

instead of a judge, he would have opposed the results of his own 

ruling by working to change the current law. 

A week after the Supreme Court’s now notorious Kelo decision, 

Mr. Sensenbrenner introduced H.R. 3135, the ‘‘Property Rights Protection Act of 2005,’’ to help restore the property rights the Supreme Court took away. 

On October 25th, Chairman Sensenbrenner introduced the even 

stronger legislation before us today, which has benefitted greatly 

from the contributions of Ranking Member Conyers, Ms. Waters, 

Mr. Goodlatte, and others, including Mr. Cannon and Mr. Flake, 

representing the Western Caucus. 

H.R. 4128 enhances the penalty for States and localities that 

abuse their eminent domain powers by denying States or localities 

that commit such abuse all Federal economic development funds 

for a period of 2 years. 

32 

Under this legislation, there is a clear connection between the 

Federal funds that would be denied and the abuse Congress is intending to prevent. The policy is that States or localities that abuse 

their eminent domain power by using economic development as the 

rationale for the takings should not be trusted with Federal economic development funds that could contribute to similarly abusive 

land grabs. 

H.R. 4128 also includes an express private right of action to 

make certain that those suffering injuries from a violation of the 

bill will be allowed access to State or Federal court to enforce its 

provisions. 

It also includes a fee-shifting provision identical to those in other 

civil rights laws that allows a prevailing property owner attorney 

and expert fees as part of the cost of bringing the litigation to enforce the bill’s provisions. 

Under H.R. 4128, States and localities will have the clear opportunity to cure any violation before they lose any Federal economic 

development funds by either returning or replacing the improperly 

taken property. 

H.R. 4128 includes carefully crafted refinements of the definition 

of economic development that specifically allow the types of takings 

that prior to the Kelo decision had achieved a consensus as to their 

appropriateness. 

We are very mindful of the sad history of the abuse of eminent 

domain, particularly in low-income and often predominantly minority neighborhoods and the need to stop it. 

I’m also very mindful of the reasons we should allow the Government to take land, when the way in which the land is being used 

constitutes an immediate threat to the public health and safety. 

I believe this bill accomplishes both goals. 

Finally, H.R. 4128 would not become effective until the start of 

the first fiscal year following the enactment of the legislation in 

order to provide States and localities with sufficient lead time within which to prepare to come into compliance with the legislation. 

And H.R. 4128 would not apply to any project for which condemnation proceedings had begun prior to enactment. 

I look forward to reporting to the full House bipartisan legislation that will limit the effect of the Kelo decision. 

Who would like to be recognized? The distinguished gentleman 

from New York, Mr. Nadler, is recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, I move 

to strike the last word. 

Thank you, Mr. Chairman. 

Mr. Chairman, for once the Supreme Court defers to the elected 

officials and Congress cries foul. The power of eminent domain 

should never be abused to take property for the private benefit of 

another. But this bill goes both too far and not far enough. 

It has a laudable purpose, but it is not well thought out, and 

needs further work before it is ready for a markup. 

This bill would permit many of the abuses and injustices of the 

past, while crippling the ability of State and local governments to 

perform genuine public duties. 

The bill does not, for example, deal with many of the problems 

of the use of eminent domain, which its supporters talk about. 

33 

It would allow takings for private rights of way—for pipelines, 

transmission lines, railroads. 

It allows private land to be annexed for the benefit of these giant 

corporations. The bill would still allow highways to cut through 

communities and would not hinder in any way all the other public 

projects that have historically fallen most heavily on the poor and 

powerless. 

Hillary Shelton of the NAACP testified that these projects are 

just as burdensome as projects including private development. 

The bill does nothing to protect displaced renters. They are usually poor and often minority, but they get no compensation, no day 

in court, only the absentee slumlords get a day in court. 

On the other hand, the bill allows a taking to give private property—to give property to a private party ‘‘such as a common carrier 

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

a right.’’ So private land could be condemned for a privately-owned passenger rail system, a common carrier, but not for a freight rail or 

marine terminal because they operate through contracts, not common carrier status. 

The bill apparently allows for a private sports stadium. Such a 

stadium is privately owned ‘‘available for use by the general public 

as of right’’ at least as much as a railroad. You can buy a seat. 

The bill would seem to include permission to use eminent domain 

to build a private shopping center. You don’t even need a ticket. 

I don’t think the drafters had allowing private stadiums and private shopping centers in mind. 

The World Trade Center, however, could not have been built 

under this law. It was publicly owned, but was predominantly 

leased for office space and retail. 

Affordable housing like the Hope Six or the fabled Nehemiah 

Program, a faith-based affordable housing program in New York, 

could never have gone forward had this bill been in place. 

The local government would risk all of its economic development 

funding for 2 years, even for unrelated projects and face bankruptcy under this bill. If a city guesses wrong as to what’s permitted, it could bulldoze the new downtown and rebuild the old 

house. 

If you want to give someone the power to extort an entire city, 

this bill does it. 

Mr. Chairman, allowing enforcement of the bill by seeking injunctive relief against an improper taking if the city accepts Federal economic development funds may be appropriate. 

The lawsuits permitted, however, and the uncertainty of the bill’s 

definitions would cast a cloud over legitimate projects. A property 

owner, under this bill, has 7 years after the condemnation before 

the litigation and appeals even begin. 

Providing a 7-year window for a retroactive challenge to every 

eminent domain proceeding that may have violated the terms of 

the bill, a challenge that, if successful, will result in refund of all 

economic aid over 2 years will put a cloud over the financing of 

every project dependent, in whole or in part, on Federal economic 

development funds. 

Local governments, even those that do not violate the terms of 

this bill, will find themselves unable to issue bonds. Who would 

34 

buy the paper of a local government or of a State government for 

that matter that might suddenly lose a significant part of its revenue base? 

I wonder if the trial lawyers wrote this provision of the bill? 

Mr. Chairman, this goes well beyond taking a Motel 6 to build 

a Ritz-Carlton without protecting the vulnerable. 

The remedies in this bill, some of them are well thought out—

the injunctive relief provision; some of them would almost put the 

equivalent of a cloud of title over every economic development 

project; in fact, over every project that requires bonding by a city 

or State or local government. 

I don’t think that’s the intention of the authors of this bill, but 

that probably will be the effect. 

I urge either the defeat of the bill or preferably I urge that this 

bill be withdrawn for further reworking before it comes up for 

markup. Let me emphasize I basically approve the purpose of the 

bill. 

I am as upset with the Supreme Court decision as anyone. I do 

think remedial legislation is in order. I think some of the provisions of this bill make sense. Some of the provisions of this bill, 

however, without I think the authors intending it, go so far in putting a cloud over the economics and the bonding ability of State 

and local governments who do not. Any State or local government 

that uses eminent will always face a possibility for 9 years, for 7 

years afterwards that someone could come along and say—and 

bring a lawsuit and say that project that you did, that economic—

that eminent domain that you used 5, 6, 7 years ago that violated 

the Federal law; therefore, you got to give back 2 years of all economic aid from the Federal Government; and, therefore, you can’t 

float your bonds because bond counsel will warn against this. 

I think this bill needs some serious work before it goes any further. 

I thank you. I yield back. 

Mr. COBLE. The gentleman’s time has expired. 

Are there amendments? 

Mr. GOODLATTE. Mr. Chairman? 

Mr. COBLE. The gentleman from Virginia, Mr. Goodlatte, for 

what purpose do you wish to speak? 

Mr. GOODLATTE. Mr. Chairman, I move to strike the last word. 

Mr. COBLE. The gentleman is recognized for 5 minutes. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

I thank you for holding this markup on this important piece of 

legislation. 

Private ownership of property is vital to our freedom and our 

prosperity, and is one of the most fundamental principles embedded in our Constitution. 

The Founders realized the importance of property rights when 

they codified the takings clause of the Fifth Amendment to the 

Constitution, which requires that private property shall not be 

taken for public use without just compensation. That clause answers many of the objections raised by the gentleman from New 

York, because many of the things he’s objecting to are provided for 

in the United States Constitution so long as the taking is for a public use. 

35 

This clause created two conditions to the Government taking private property: that the subsequent use of the property is for the 

public and that the Government gives the property owners just 

compensation. 

However, the Supreme Court’s recent 5 to 4 decision in Kelo v. 

City of New London is a step in the opposite direction. This controversial ruling expands the ability of State and local governments 

to exercise eminent domain powers to seize property under the guise 

of economic development when the public use is as incidental as 

generating tax revenues or creating jobs even in situations where the 

Government takes property from one private individual and gives it 

to another private entity. 

By defining public use so expansively, the Court essentially 

erased any protection for private property as understood by the 

Founders of our Nation. 

In the wake of the decision, State and local governments can use 

eminent domain powers to take the property of any individual for 

nearly any reason. 

Cities may now bulldoze private citizens’ homes, farms, and 

small businesses to take away—to make way for shopping malls or 

other developments. Because shopping malls do not have public use 

as matter of right, the gentleman is incorrect when he suggest that 

this prohibition would not cover shopping malls. 

For these reasons, I joined with you, Mr. Chairman—Chairman 

Sensenbrenner to introduce H.R. 4128, the ‘‘Private Property 

Rights Protection Act of 2005.’’

This important piece of legislation incorporates many provisions 

from the Stop Act, which is legislation I introduced, along with 

Representatives Bonilla and Herseth. Specifically, this new legislation would prohibit all Federal economic development funds for a 

period of 2 years for any State or local government that abuses its 

eminent domain powers. 

In addition, this new legislation would allow State and local governments to cure violations by giving the property back to the 

original owner. 

Furthermore, this bill specifically grants adversely affected landowners the right to use appropriate legal remedies to enforce the 

provisions of the bill. 

The Stop Act was reported out of the House Agriculture Committee by a strong bipartisan vote of 40 to 1 earlier this month. 

And I thank Chairman Sensenbrenner for his willingness to 

produce one new piece of legislation that adds these important provisions from the Stop Act. 

No one should have to live in fear of the Government snatching 

up their home, farm, or business, and the Private Property Rights 

Protection Act will help to create the incentives to ensure that 

these abuses do not occur in the future. 

This legislation has strong bipartisan support. I thank Ranking 

Member Conyers and Congresswoman Waters for their participation in joining with us on the Committee to do something to discourage the abuse of power that was authorized by the Kelo decision. 

I yield back the balance of my time. 

Mr. COBLE. The gentleman yields back. Are there amendments? 

36 

Mr. GOODLATTE. Mr. Chairman? Mr. Chairman, I have an 

amendment. 

Mr. COBLE. The gentlelady from California. I saw her hand first. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

I do have an amendment. 

First, let me say to Chairman Sensenbrenner and all of the coauthors on the bill that I certainly appreciate all of the work that 

has gone into this bill and the bipartisan effort that have been 

forth to deal with the Supreme Court decision. 

I too share my shock at that decision, because I never thought 

that I would witness the Supreme Court of the United States issue 

or render a decision that would basically legalize the taking of private property for private use. 

I am adamantly opposed to the taking of private property for private use. As a matter of fact, I’m suspicious about eminent domain 

as we know it, the taking of private property for public use. And 

even when a government entity decides to use eminent domain, I 

think it should it be scrutinized. I think the citizens must be involved——

Mr. COBLE. Ms. Waters, will you suspend for just a minute? 

Ms. WATERS. Yes. 

Mr. COBLE. Do you have an amendment? 

Ms. WATERS. I have an amendment at the desk. 

Mr. COBLE. Very well. 

The Clerk will report. 

Ms. WATERS. It is number one. 

The CLERK. Amendment to H.R. 4128, offered by Ms. Waters of 

California. 

Mr. COBLE. I ask unanimous consent that the amendment be 

considered as read. 

[The amendment offered by Ms. Waters follows:] 

37 


4128A.eps
38 

Ms. WATERS. Thank you very much, Mr. Chairman. I said most 

of what I wanted to say. Before I had the amendment brought up. 

Mr. COBLE. Very well. 

Ms. WATERS. But basically that I am adamantly opposed. I’m 

rather a purist on this issue. I do not think there should be any 

exceptions, none. 

I think that the Constitution refers to proper compensation for 

the taking of land for public use. I think that should guide our cities, our counties, our community redevelopment agencies. 

I am told who I have had discussions with about this issue that 

no matter what that many of these entities are taking private land 

for private use, despite the fact that eminent domain is thought to 

be the taking of property for public use. It’s going on now. 

And if that is the case and if Kelo has helped to highlight this, 

then I think that the fact that this bill would not allow entities to 

use Federal funds in the taking of private property for private use 

is a proper response to that Supreme Court decision. 

So, therefore, again my full appreciation for the work that has 

been done, but my amendment basically would not allow any exceptions, none, no exceptions, not even for our so-called safety reasons. I just don’t think it’s needed. 

For those people who would like to talk about properties that are 

unsafe, they have condemnation proceedings that can be utilized in 

cities and counties and these other entities. 

And so I would put forth this amendment and ask my colleagues 

to support excluding from this bill the taking of private property 

for any use. There should be no waivers, no exceptions. 

Mr. COBLE. I thank the gentlelady from California. 

Mr. Goodlatte, I believe you handled these matters in some detail 

in the AG Committee so the Chair recognizes you in response. 

Mr. GOODLATTE. Well, thank you, Mr. Chairman. And I, first of 

all, want to thank Ms. Waters for her purism. I very much respect 

her position on this. She testified before the Agriculture Committee 

on this, and I understand where she’s coming from on this, because 

quite frankly when eminent domain powers are abused, often lowincome people are the first people who are on the block because 

their properties are worth less than others and a community has 

the greatest temptation to take that property to increase its value. 

But a person’s home is their castle no matter what their economic status might be. 

However, having said that, I must reluctantly oppose the gentlewoman’s amendment because it goes well beyond the intent of this 

legislation to cure the Kelo decision. The problem with the Kelo 

case involved the Court saying that something as marginal as increasing the economic tax base, the tax revenues to the community 

would be a justification for taking private property and turning it 

over to another private entity for any kind of private economic development purpose. 

The gentlewoman’s amendment, however, would eliminate the 

ability to use eminent domain for things that were intended I believe by our Founding Fathers in the Constitution, and which I 

think are essential for any community to operate under like building roads, having power lines and gas lines and other public utility 

lines, having schools and other public uses. And we have to draw 

the distinction in this legislation between a public purpose, and 

39 

this private use that was the subject of the Kelo decision, and some 

decisions quite frankly that came before Kelo that I think are 

equally controversial. 

This legislation will address all those. It will go a long way to 

reduce the number of occurrences that the gentlewoman is concerned about. 

Ms. WATERS. Will the gentleman yield? 

Mr. GOODLATTE. I don’t think we can eliminate them. Yes, I’ll be 

happy to yield to the gentlewoman. 

Ms. WATERS. Again, I have great appreciation for the work that 

you have done. However, you know that there is nothing in this 

amendment that would stop eminent domain usage for public purposes. That is what the law is now in every State, every municipality. There is nothing in this amendment that would prohibit, in 

any shape, form, or fashion, the taking of private property for public use. 

There is no need for us to even address that here. That is what 

takes place. That was not what the Kelo decision was all about. 

The Kelo decision was about the taking of private property for private use. 

Mr. GOODLATTE. Well, reclaiming——

Ms. WATERS. This does not in any way stop any entity from exercising eminent domain for public use. So. 

Mr. GOODLATTE. Reclaiming my time. 

Ms. WATERS. Yes. 

Mr. GOODLATTE. I have to respectfully strongly disagree. The 

problem with the Kelo case is that there was no definition of where 

the line would be drawn between public use and private use. And 

the things that the gentlewoman strips out of the bill are those 

provisions that make that clear distinction between private use and 

public use. 

So it would be my hope that the Committee would reject the 

amendment. We certainly would want to continue to work with Ms. 

Waters to find other ways to make it clear that there can’t be 

abuses, but I think she—her amendment goes too far. 

Ms. WATERS. Will the gentleman yield? 

Mr. GOODLATTE. I’d yield further. 

Ms. WATERS. What you attempted to do in the bill is cite some 

public use. I mean that’s really redundant, because entities do that 

now. As a matter of fact, you can’t cite all of the public reasons—

I mean all of the reasons why eminent domain could be used for 

public use. There are a thousand and one of those reasons or more. 

Thousands of uses. 

So what you attempted to do was to cite some of the public uses, 

and the bill makes it seem as if you would now allow for the taking 

of private property for these public uses. 

Again, it’s redundant. That already—that happens already. 

There is nothing in this bill that would stop that. 

Mr. GOODLATTE. Reclaiming my time. 

Ms. WATERS. Yes. 

Mr. GOODLATTE. There is no definition in the United States Constitution of what constitutes public use, and that was what gave 

the Kelo Court the freedom to determine that public use included 

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40 

ment purposes just to increase the tax revenue base of the City of 

New London, Connecticut. 

And we need to have those provisions in there. Otherwise, you’re 

correct: there would be no eminent domain authority whatsoever 

for any public use because it is not defined anywhere else. 

Ms. WATERS. If the gentleman would yield for a question. 

Mr. GOODLATTE. And you either bring it back to the Court or you 

would be eliminating them altogether; and, therefore, I must object. 

Ms. WATERS. Would you yield for a question? 

Mr. GOODLATTE. I would. 

Ms. WATERS. Are you saying that you have identified all of the 

public uses for which eminent domain would be used for in this 

bill? 

Mr. GOODLATTE. Reclaiming my time, I’m saying that I have 

identified all of the public use purposes for which we’re asking this 

Committee to authorize, and we’re not asking them to authorize 

any beyond that. 

And if the gentlewoman’s objective is to limit the number of instances in which eminent domain can be used, she would want to 

see those limitations in the bill. 

Ms. WATERS. The gentleman’s interpretation is——

Mr. COBLE. The gentleman’s time has expired. 

Ms. WATERS.—incorrect. 

Mr. COBLE. The question occurs on the Waters Amendment. All 

in favor say aye. 

Opposed no? 

I appears the noes have it. The noes have it. 

Are there further amendments? 

Mr. CANNON. Mr. Chairman? 

Mr. COBLE. The gentleman from Utah, Mr. Cannon. 

Mr. CANNON. Thank you, Mr. Chairman. I have an amendment 

at the desk. 

Mr. COBLE. The Clerk will report. 

The CLERK. Amendment to H.R. 4128, offered by Mr. Cannon of 

Utah. Add at the end the following section: 

Mr. COBLE. Unanimous consent that the amendment be considered as read. 

[The amendment offered by Mr. Cannon follows:] 

41 


4128B.eps
42 

Mr. CANNON. Thank you, Mr. Chairman. It’s actually a very simple amendment. 

Perhaps I can start as we’re passing it out. In fact, I’ll read it. 

It’s very short; very simple. 

It’s a rule of construction and it reads: ‘‘this Act shall be construed in favor of a broad protection of private property rights, to 

the maximum extent permitted by the terms of this Act and the 

Constitution.’’ The intent of the legislation is to protect private property rights. 

And this amendment will help make sure judges can’t find ways to 

wiggle out of the protections this bill gives to property owners. 

This rule of construction will tell every judge interpreting this 

legislation that if there’s any doubt about how it should be applied, 

the judge should err on the side of the property owner. 

Let me also thank all those who worked on this bill, especially 

Chairman Sensenbrenner, who is not with us. He has my condolences on his family circumstances—— Mr. COBLE. Would the gentleman yield to the Chair? 

Mr. CANNON. I’d be happy to yield, Mr. Chairman. 

Mr. COBLE. Mr. Cannon, this appears to be a technical amendment. The Chair will accept it. 

Mr. CANNON. Thank you. I yield back. Well, I yield to the gentleman from Virginia. 

Mr. GOODLATTE. It’s more than a technical amendment. I think 

it is a strengthening amendment, and it is along the lines of what 

Ms. Waters has attempted to accomplish. It will be one more way 

to assure that the law is construed in favor of the private property 

owner to the maximum extent possible. 

Mr. CANNON. Thank you, Mr. Chairman. Does the gentlelady 

from California wish to yield from me. I’ll give it to you. 

Ms. WATERS. Yes. Thank you very much. 

I appreciate you attempt to strengthen the bill with that language, and I certainly will support it. 

Your language, which requires a judge to err on the side of the 

property owner, gets closer to where I would like to be so that we 

don’t have all of these interpretations that would allow for waivers 

or exceptions in ways that would harm the property owner. 

So I certainly will support it. And I will ask my colleagues to 

please support it. 

Mr. COBLE. The question occurs on the Cannon amendment. All 

in favor say aye. 

Opposed no? 

It appears the ayes have it. The ayes have it, and the amendment is approved. 

Are there additional amendments? 

Mr. NADLER. Mr. Chairman. 

Mr. COBLE. The gentleman from New York, Mr. Nadler. 

Mr. NADLER. Mr. Chairman, I have an amendment at the desk, 

Mr. Chairman. 

Mr. COBLE. The clerk will report. 

The CLERK. Mr. Chairman, I have two amendments for Mr. Nadler. 

Mr. NADLER. The short one. 

The CLERK. Amendment to H.R. 4128, offered by Mr. Nadler 

Page 8, 20——

43 

Mr. NADLER. That should be line 20. 

The CLERK. Page 8, line 20, insert ‘‘or’’ before ‘‘public utility’’ and 

strike ‘‘or public facility.’’

Mr. NADLER. Mr. Chairman, I ask unanimous consent to insert 

the word ‘‘line’’ before 20? 

Mr. COBLE. Without objection. 

[The amendment offered by Mr. Nadler follows:] 

Mr. NADLER. Thank you. 

Mr. COBLE. The gentleman is recognized for 5 minutes. 

Mr. NADLER. Thank you. Mr. Chairman, this amendment I think 

will accomplish what everybody who drafted this bill wants to accomplish. 

If you look at the language on page 8, it says the term economic 

development means taking private property without the consent of 

the owner, conveying or leasing such property from one private person or entity to another, et cetera, et cetera, or to increase tax revenue, tax base. And all that would be prohibited except that such 

terms shall not include—so the following is not included within the 

proscription of the bill. The following is permitted: conveying private property to public ownership, such as for a road, hospital, or 

military base, or to an entity such as 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. 

Now I believe a public facility would mean a stadium or a shopping mall or a shopping center. So all this amendment would do 

is to remove the phrase or public facility on line 20 and put the 

word or in front of public utility. 

So you would have in the bill then that the following does not—

that the bill does not apply to the following. The following is permitted: conveying private property to public ownership for a road, 

hospital, military base, blah, blah, or to an entity such as a common carrier that makes the property available for use by the general public as a right, such as a railroad or public utility, or for 

uses of right of way. And it would not include public facility. 

So all this does is take out or public facility, which would mean 

no stadiums, no shopping malls, which is what I assume the authors of the bill intended in the first place. 

Mr. GOODLATTE. Mr. Chairman? Mr. Chairman? 

Mr. COBLE. I thank the gentleman from New York. 

Mr. NADLER. And I yield to the gentleman from——

Mr. GOODLATTE. I’m asking for recognition. 

Mr. COBLE. The gentleman from Virginia is recognized for 5 minutes. 


4128C.eps
44 

Mr. GOODLATTE. Thank you, Mr. Chairman. I must rise in opposition to this amendment. 

The operative words in the section cited by the gentleman are ‘‘as 

a matter of right.’’ Now, a public facility, like a stadium is, and 

would only be protected under this law if it was open the public 

as a matter of right. And if it were not, if there were restrictions 

on the use of the facility, then it would not be appropriate to use 

the eminent domain power for that purpose or the community 

would risk losing their public funding for 2 years—their Federal 

funding for 2 years. 

However, a shopping mall is a private entity that is not open to 

the public as a matter of right. Shopping centers, individual stores, 

are not open to the public as a matter of right. The shopping center 

can chose at any time to exclude a particular person from entering 

that shopping center if they have cause to do so, and that is the 

difference and is the operative provision in the language. 

And that—I will in a minute. And that is why you have to allow 

for public facility; otherwise, you would be encompassing all kinds 

of things that are public entities, not private entities, but public entities that would be excluded from eminent domain powers unless 

you have that provision in there. 

And the protection against abuse is the language as a matter of 

right. 

Mr. NADLER. Now, would the gentleman yield? 

Mr. GOODLATTE. I will happily yield. Yes. 

Mr. NADLER. Well, the problem with that, Mr. Goodlatte, is that 

a railroad is not available to the public unless you buy a ticket. 

Mr. GOODLATTE. Well, reclaiming my time, that’s why railroads 

are specifically mentioned in the legislation as opposed to being encompassed by the—— Mr. NADLER. Would the gentleman yield again? 

Mr. GOODLATTE. I will. 

Mr. NADLER. It says by the—it says a common carrier that 

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

right, such as a railroad. In other words, it is saying that a railroad 

or a public utility are examples of what—of things that are available as of right. And anybody will—what a court will read this as 

is that anything that is available to the general public, even if you 

have to buy a ticket, even if they retain the right to exclude you, 

is excluded. And that—and it certainly a stadium would be equivalent to a railroad, because you have to buy a ticket. And a shopping 

mall is even loser, because you don’t have to buy a ticket. 

Mr. GOODLATTE. Reclaiming my time, the term ‘‘as of right’’ is 

defined in Black’s Law Dictionary as ‘‘by virtue of a legal entitlement.’’ Certainly, a private store, such as a Target store or a Home 

Depot is not open to the public as of right. Such stores have the 

right to kick anybody out of their stores as they see fit. Unless, of 

course, they’re illegally discriminating against a legally protected 

class. 

So a Target or a Home Depot store or a shopping mall would 

clearly not meet the criteria of this exception. 

Mr. COBLE. The time of the gentleman has expired. The question 

occurs on the Nadler Amendment. All in favor? 

Ms. WATERS. Mr. Chairman? Mr. Chairman? Mr. Chairman? 

Mr. COBLE. The gentlelady from California. 

45 

Ms. WATERS. I rise in support of the gentleman’s amendment. 

He’s absolutely correct. And I think that——

Mr. COBLE. For what purpose does the gentlelady seek recognition. Move to strike the last word? 

Ms. WATERS. Strike the last word. 

Mr. COBLE. The gentlelady is recognized for 5 minutes. 

Ms. WATERS. I think that what this Committee is going to have 

to focus on is whether or not we are attempting to put a bill out 

that’s going to protect private property without trying to massage 

it in ways that would allow people to build public stadiums and 

other kinds of buildings and developments so that they can take 

people’s property for it. We see it all over the country taking place 

now. 

And so I think that the gentleman to the right of me, Mr. Watt, 

makes a good—raises a good question, when he asked about this 

right that you try and define whether or not you have to pay to 

go into this public stadium that you are allowing to be built with 

this exception that you have put into this bill. 

Mr. NADLER. Would the gentlelady yield? 

Ms. WATERS. Yes, I’ll yield. 

Mr. NADLER. Thank you. I—you know, I disagree with the—I 

agree with the gentlelady. I disagree with the gentleman from Virginia, because I think he’s reading it too finely, and I think that 

the way that any court will read that if a railroad is available as 

of right, so is a stadium. They both sell tickets. They both retain 

the right to kick people out. A shopping mall doesn’t bother selling 

tickets. It retains the right to keep people out. 

Perhaps a better way, and maybe I should ask the gentleman 

from Virginia would he accept an amendment that I’ll draft that 

will simply leave the language as it is, but add after the words ‘‘or 

public facility, but not including stadiums or shopping malls.’’ That 

would seem to accomplish what I think everybody wants to accomplish however you chose to read the language. 

Mr. GOODLATTE. If the gentlewoman would yield, I’d be happy to 

respond to the gentleman’s——

Ms. WATERS. Yes, I’ll yield. 

Mr. GOODLATTE. Well, I would not agree to that because the distinction has to be made between public use and private use under 

the law, and that is what the language that’s in the bill already 

does. And a public stadium, operated with access to the public as 

a matter of right, should be and would be allowed under the law. 

A shopping mall would not. 

Ms. WATERS. No. 

Mr. NADLER. Wait a minute. Would the gentlelady yield again? 

Mr. GOODLATTE. So it would be inaccurate. 

Ms. WATERS. Yes, I’ll be happy to yield. 

Mr. NADLER. Do I understand the gentleman to say that a stadium would be available; that you could build a private stadium 

through use of eminent domain under this provision? 

Mr. GOODLATTE. Only if it’s open to the public as a matter of 

right. 

Mr. NADLER. As any stadium is. But in other words——

Mr. GOODLATTE. Now, I don’t say that. 

Mr. NADLER.—sports stadium——

46 

Mr. GOODLATTE. I would not say that any stadium is open as a 

matter of fact. 

Mr. NADLER. All right. A sports stadium for the Nationals or for 

the Mets or for the Yankees would that—you would that that 

should be available to develop that under use of eminent domain? 

Mr. GOODLATTE. If it’s open to the public as a matter of right, 

yes. 

Mr. NADLER. Well, let me simply say I thought the major purpose of this bill was that that kind of abuse of the power of eminent domain for private purposes is what we want to prohibit. And 

now you’re telling us that that is—that a stadium that sells tickets 

for a Yankee game or a Nationals game or a Knicks game or even 

the White Sox games that that’s okay for eminent domain? 

Ms. WATERS. Reclaiming my time—is it my time? Reclaiming my 

time. 

Mr. NADLER. Yes. It’s your time. 

Mr. COBLE. The gentlelady from California——

Ms. WATERS. Reclaiming my time. 

Mr. COBLE.—controls the time. 

Ms. WATERS. That’s precisely why I thought we were putting 

forth this legislation, to stop that kind of abuse where you have 

even your local elected officials and mayors, in cooperation with developers, who want to take people’s property and build stadiums 

and other private development. It’s no right to be able to buy a 

ticket to a stadium where homeowners have lost their property because somebody likes football or whatever it is they play in these 

stadiums. 

I just think we don’t want to do that. We are fooling ourselves 

if we put forth legislation that we claim protects our citizens from 

having their private property taken when we have these kinds of 

exceptions and loopholes, and I will yield to the gentleman from 

New York. 

Mr. COBLE. She yields to you, Mr. Nadler, did you want to. 

Mr. NADLER. Yes. I—thank you. I simply want to say that I have 

to go back to what I observed earlier in my opening statement. 

Most of the people who are drafting this bill, most of the Members 

of this Committee, want to eliminate the abuse that we all believe 

that the Supreme Court decision in Kelo opens us up to; that if we 

have a bill that allows the taking of or the use of taking of private 

property under the power of eminent domain, and giving it to a 

multi-millionaire to build a sports stadium for the Yankees or the 

Mets or whoever for private property, which is what that sports 

stadium is, that’s not solving the problem. That’s not solving the 

problem. 

Now, Mr. Goodlatte says that under this bill, it would allow the 

taking of private property by eminent for a stadium and that’s 

okay, but not for a shopping mall, and that’s not okay. I don’t see 

the distinction. 

I again think the bill ought to go back to the drawing boards, because we agree on what we want to do, at least I think we agree 

on what we want to do. I think most people on this Committee, on 

both sides of the aisle, think it shouldn’t—that we don’t want to see 

private property used for stadiums. 

Mr. COBLE. The gentlelady’s time has expired. For what purpose 

does the gentleman from Texas seek recognition? 

47 

Mr. SMITH. Mr. Chairman, I move to strike the last word. 

Mr. COBLE. The gentleman is recognized for 5 minutes. 

Mr. SMITH. Mr. Chairman, I will yield my time to the gentleman 

from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. I thank the gentleman from Texas for yielding. 

That is not what this bill does. The distinction, and you’re right. 

We want to address the Kelo decision. The Kelo decision. The Kelo 

decision addresses the issue of a government taking private property and turning it over to another entity for private development 

purposes. Ninety-five percent of the stadiums in the United States 

are publicly owned facilities, open to the public as matter of right. 

If you have a stadium that is privately owned, and it is not open 

to the public as a matter of right, then the sanctions imposed in 

this bill would apply to that eminent domain taking. 

Now, I understand Ms. Waters would like to stop any public taking of private property for any public purpose. 

Ms. WATERS. That’s not true. 

Mr. GOODLATTE. Well, all right. Well, then I—— Ms. WATERS. Don’t misinterpret. Don’t do that. 

Mr. GOODLATTE. I have the time. The fact of the matter is that 

is—if that’ the gentlewoman’s goal, then that’s great, ’cause that’s 

my goal, too. The fact of the matter is that this will only take effect 

for public uses where—I mean for private uses where the facility 

is not open to the public as a matter of right. 

And that’s why I must strongly oppose the gentleman’s amendment, because he’s trying to confuse shopping malls, which would 

clearly not be covered under this legislation and a public stadium, 

which clearly would, and he is mixing public and privately-owned 

stadiums to suggest that a private stadium—a city could take land, 

turn it over to a private entity and have them develop it, privately 

own it, privately restrict access to it, and they would still be able 

to use the eminent domain power. 

This would stop that practice from occurring, but it would not 

stop the practice of a public—of a community taking property for 

a public purpose, as is intended under the Constitution—a public 

use. 

Mr. COBLE. Does the gentleman yield back? 

Mr. SMITH. Mr. Chairman, I’ll yield back the balance of my time. 

Mr. COBLE. The question occurs on the Nadler Amendment. All 

in——

Mr. SCOTT. Mr. Chairman? Mr. Chairman? 

Mr. COBLE. The gentleman from Virginia. 

Mr. SCOTT. Move to strike the last word. 

Mr. COBLE. The gentleman from Virginia is recognized for 5 minutes. 

Mr. SCOTT. Mr. Chairman, I think this entire discussion shows 

the problems in the underlying bill. I mean, you kind of know it 

when you see it. And we’re trying to define it. And going back and 

forth on when a stadium is available—when you can build a stadium using eminent domain and when you can’t is just—we don’t— you can’t define it. I mean when it’s public and when it’s private, 

you can’t—you can have a private developer. How you build a stadium for the Nationals is going to determine whether or not you 

can use eminent domain, whether the city has sole title or whether 

a developer can hold title, and that’s how you’re going to build a 

48 

stadium. I think that shows when you know it when you see it, but 

you can’t define it. And that’s what we’re trying to do is define 

what cannot be defined. And this bill for that reason is fatally 

flawed and this amendment and the discussion on the amendment 

show part of the problem with the underlying legislation. 

I yield to the gentleman from New York. 

Mr. NADLER. Thank you. Thank you. First of all, I thank the gentleman for yielding. 

First of all, I think this does show the problem here; that the bill 

needs further work. Now, frankly, I was referring to a privately 

owned stadium, and I thought Mr. Goodlatte was talking about a 

privately-owned stadium would be okay under this bill, too. I’m 

glad to hear he doesn’t mean that. But as I read the bill, the bill 

seems to say that, because a private railroad—anything that makes 

the property available for the use by the general public as a right, 

such as a railroad. A railroad is privately owned. A railroad makes 

the facilities available to anybody who pays a ticket, retains the 

right to kick somebody off or say we don’t like you unless he says 

it for the wrong, and that would seem to—and when you say that, 

that would seem to indicate that a—I’ll yield in a moment—that it 

would seem to indicate that a privately-owned stadium or a privately-owned shopping mall would fall under the same thing. 

And I think we can clarify the privately-owned shopping center 

since you seemed to—it’s harmless to specify that if you think it’s 

already included. But then the question comes up with a stadium, 

for instance. You said that 95 percent of stadiums are publiclyowned that are now built. That may or may not be true. I don’t 

know, but assuming it is true, that means if you want to use eminent domain for the next stadium, well, you just structure the deal 

so you get in the city government to agree to condemn it, sell it 

to you for a dollar or lease it to you for 99 years, and it’s a public 

facility, as opposed to condemning it and giving it to you. 

I don’t see the practical distinction. 

So I think that, again, I would hope that this amendment or 

some other version of an amendment to make clear that stadiums 

and shopping malls are not included. Otherwise, the distinction 

you’re making may be a legal distinction, but it does not do what 

I thought we all wanted to do. 

Now, I do not agree with Maxine, if what she wants to do is 

eliminate all public use. I certainly don’t want to eliminate all public use. 

Ms. WATERS. Will the gentleman yield? 

Mr. NADLER. I’ll yield. 

Ms. WATERS. Please I——

Mr. COBLE. The gentleman from Virginia controls the time. 

Ms. WATERS. Listen. I think it’s very important if——

Mr. NADLER. Yes. I’ll yield. 

Ms. WATERS. I do not wish to have what I believe defined incorrectly. So I want to make it clear that I do not in any shape, form, 

or fashion——

Mr. NADLER. Right. 

Ms. WATERS.—in anything that I’ve said or done—— Mr. NADLER. I stand corrected. 

Ms. WATERS.—interfere with eminent domain as we know it for 

public use. This is about taking of private property for private use. 

49 

I believe there should be no exceptions for the taking of private 

property for private use. That’s very different from eminent domain 

for public use. Let’s be clear about that. I yield back. 

Mr. SCOTT. Reclaiming my time, Mr. Chairman, I think this also 

points out, they’re trying to build a stadium in Washington, D.C. 

If a private individual decides he’s going to do it himself, that 

would be prohibited under this language. If you’re using public 

money and soaking the public to build it, then that would be okay. 

That’s absurd. I yield back. 

Mr. COBLE. The gentleman yields back. The question occurs on 

the Nadler Amendment. All in favor say aye. 

Opposed no? 

It appears the noes have it. A rollcall vote having been requested 

on the amendment, Members will when their names are called answer aye. Those who approve—a no—in opposition. The Clerk will 

call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

[No response.] 

The CLERK. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

[No response.] 

The CLERK. Mr. Franks? 

50 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

[No response.] 

The CLERK. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Pass. 

The CLERK. Mr. Scott, pass. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Pass. 

The CLERK. Ms. Lofgren, pass. Ms. Jackson Lee? 

Ms. JACKSON LEE. I’m going to pass for a moment. Thank you. 

The CLERK. Ms. Jackson Lee, pass. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

[No response.] 

The CLERK. Mr. Schiff? 

[No response.] 

The CLERK. Mr. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Mr. COBLE. No. 

The CLERK. Mr. Chairman, no. 

Mr. COBLE. Are Members wanting to change their vote or vote? 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I vote no. 

The CLERK. Mr. Scott, no. 

Mr. COBLE. The gentleman from North Carolina, Mr. Watt. 

Mr. WATT. I’m not voting. 

The CLERK. Mr. Chairman, Mr. Watt vote aye. 

Mr. WATT. I would like to change my vote to no. 

Mr. COBLE. The gentleman changes his vote to no. 

The gentlelady from California, Ms. Lofgren? 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. 

Mr. COBLE. The Ranking Member, the gentleman from Michigan, 

Mr. Conyers? 

Mr. CONYERS. Aye. 

51 

The CLERK. Mr. Conyers, aye. 

Mr. COBLE. Are there—the gentleman from California, Mr. 

Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. 

Mr. COBLE. Are there other Members who wish to vote or change 

their votes? Ms. Jackson Lee, the gentlelady from Texas. 

Ms. JACKSON LEE. How am I recorded? 

The CLERK. Mr. Chairman, Ms. Jackson Lee is recorded as a 

pass. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Mr. COBLE. The Clerk will report. 

The CLERK. Mr. Chairman, there are 7 ayes and 20 noes. 

Mr. COBLE. And the amendment fails. Are there additional 

amendments? 

Mr. WATT. Mr. Chairman? 

Mr. COBLE. The gentleman from North Carolina, Mr. Watt. 

Mr. WATT. Mr. Chairman, I have an amendment at the desk. 

Mr. COBLE. I’ll get you next, Mr. Cannon. 

The gentleman from North Carolina, Mr. Watt. 

Mr. WATT. I have an amendment at the desk. 

Mr. COBLE. The Clerk will report. 

The CLERK. Amendment to H.R. 4128, offered——

Mr. WATT. I ask unanimous consent the amendment be considered as read. 

Mr. COBLE. Without objection. 

[The amendment offered by Mr. Watt follows:] 

Mr. COBLE. The gentleman is recognized for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. This amendment would 

strike the entirety of the bill other than section 7, which is the 

Sense of Congress section. There are some things in this—in section 7 that expresses the Sense of Congress that emphasizes our 

concern and desire for condemnation, eminent domain to be properly used and with restraint, but I think once we go beyond that, 

I think we have just gone too far. 

I sit here sometimes, and I think I live in a different world than 

my colleagues. I live in a city in which at least half of the downtown area has been taken from African Americans and poor people 


4128D.eps
52 

primarily under eminent domain on the theory that the parts of 

the city were blighted and that you had to remove those parts of 

the city to—for a public purpose. Back in the ’70’s and ’80’s everybody was calling it urban renewal. Throughout my community, we 

were calling it urban removal, because that’s exactly what it was. 

As a result of those condemnations, there’s an Adams Mark 

Hotel that sits in the middle of where the Black community used 

to be. There is a Board of Education that’s there, which I guess 

could still be done under this bill. There’s an office building that 

I helped develop when I was practicing law. That’s there because 

we Black folks went to the City Council and said, hey, you’ve taken 

all this property and you’re giving it to rich White people, and the 

least you could do is allow one little minority business development 

to take place. 

There is a Baptist Church on land. That’s a private use that was 

taken. And more recently, I live in a city that has condemned for 

eminent domain the property that the Bank of America Stadium is 

built on. That’s the stadium that the Panthers play in. 

We don’t have an idea whether it’s privately-owned or publiclyowned, to be honest with you, because the football team certainly 

is privately-owned. They’re the only tenant that will be able to use 

it. The payment of the bonds that were used to build the darn 

thing are paid for from a seat tax. 

So I mean I don’t know what world you all are living in. The Kelo 

decision has been the story of the African American and poor community for years and years and years. And so I just don’t understand what world you’re living in. 

And this bill is not going to solve the problem that I’m describing 

because, still, blighted neighborhoods will be taken for a public 

purpose, and they will be predominantly minority communities, 

and certainly mostly poor communities. We’re getting ready to take 

property by eminent domain to build a transit center. Is that public 

or private? The private trains will come into it. That is Amtrak 

public or private? We don’t know whether it’s public or private. Nobody sitting here knows whether Amtrak is public or private. We’re 

certainly putting money into it as if it were public. But they charge 

a fee, just like our football team charges a fee. This public access 

that Mr. Goodlatte is talking about. I don’t know what in the world 

he’s talking about when you start charging a fee to get into something. I get into a lot of shopping centers a lot cheaper than I can 

get into our public-private partnership football stadium. 

So I just don’t understand what all this flap has been about, and 

I don’t understand how this bill does anything to address it. We 

ought to be restrained in our use of eminent domain. I agree with 

that. The Sense of Congress part of this expresses that, and I think 

that’s enough. I yield back the balance of my time. 

Mr. COBLE. The gentleman’s time has expired. The gentleman 

from Virginia. 

Mr. GOODLATTE. I thank the Chairman. Mr. Chairman, I appreciate very much the sentiments expressed by the gentleman from 

North Carolina, but the fact of the matter is if his amendment is 

adopted, which guts the entire bill, then the legislation will indeed 

do as he says, achieve nothing. 

What the legislation will achieve now is to have the effect of 

very, very strongly discouraging, as I think the gentleman from 

53 

New York has noted earlier, communities from taking the chance 

of taking private property for private economic development purposes. Some of the things the gentleman described that had occurred in his home city would be prevented by this. Some would 

not. 

And the purpose of the bill is not to reverse the provision in the 

Constitution, which recognizes that you can take private property 

for public uses with just compensation. It is to say that when the 

Court defines what that private purpose is to mean simply increasing the amount of tax revenue for the community that that goes 

well beyond the meaning of public use. And we put the exercise 

and use of eminent domain back where it properly is. 

I urge my colleagues to defeat this amendment. It would simply 

gut the bill. 

Mr. COBLE. The gentleman yields back. The question occurs on 

the——

Ms. LOFGREN. Mr. Chairman? Mr. Chairman? 

Mr. COBLE. The gentlelady from California. 

Ms. LOFGREN. I move to strike the last word. 

Mr. COBLE. The lady is recognized for 5 minutes. 

Ms. LOFGREN. I want to speak in favor of the amendment, and, 

you know, I disagreed with the Kelo decision. And I’ve actually 

seen in my own community what I think is very questionable use 

of eminent domain where private property owners are removed and 

then other private property owners are given the property and benefit. And I think most people in my community disagree with that. 

I disagree with it. 

But the question is, where is the appropriate remedy? The Kelo 

case outlined the maximum really that localities could go, but it 

doesn’t mean the localities should go there. And the real question 

I’ve been struggling with is whether this is something that States 

ought to take up or whether it’s something the Federal Government ought to insert itself into. 

Every condemnation is done pursuant to a statute, and I may be 

the only Member of the Committee that’s actually voted to condemn property when I was in local government to build—or maybe 

others did, too—but to build highways and the like. There is an appropriate case to be made if you’re building a highway, as we built, 

you know, 60 miles of interstate highway, you have—we had to 

condemn some land to do that, and I think everybody understood 

that. 

But I don’t think this is drafted well, to be honest. And I think 

there’s going to be a lot of questions about it. I was going to offer 

an amendment about public non-profit housing or affordable housing, and I now realize I don’t even need to offer that amendment 

because that’s going to be—fall into the exception here. 

So I really think that a strong condemnation of this activity is 

warranted, and encourage States to do the right thing might be the 

better approach. 

I think that this bill, although I’m sure well intentioned, is going 

to lead to a lot more litigation and lot more confusion than is even 

the current case, and that’s why I support the gentleman’s amendment, even though I oppose the kind of condemnation that was permitted in the Kelo decision. 

And I yield back. 

54 

Mr. COBLE. The gentlelady yields back. All the—— Mr. NADLER. Mr. Chairman? Mr. Chairman? 

Mr. COBLE. The gentleman from New York. 

Mr. NADLER. Thank you. I’ll be very brief. 

I agree with the gentlelady from California. I think the problems 

we’re getting into in this bill and the problems that are highlighted 

by Mr. Goodlatte’s amendment that we’ll be considering in a few 

minutes are showing that the distinctions that we think are clear 

cut between private and public are not so clear cut; that public utilities, for instance, which we think of as public utilities now under 

deregulation don’t want to be common carriers anymore, and we’ll 

talk about this under Mr. Goodlatte’s amendment, but they’re partaking more and more the character of private enterprises, and 

why should we give an exemption to this private enterprise to that 

private stadium, but not to that shopping center. 

And I’m not sure—I thought when I started this meeting that 

this bill could be reworked and that we could have better definitions and so forth. And that’s why I offered some of my amendments. 

But as I’m listening to the discussion, I’m not sure that’s really 

feasible. And maybe what the gentlelady suggested is right. Maybe 

we should simply have a strong Sense of Congress, and let the 

State legislatures work it out, and be the laboratories of democracy 

that we always talk about and not use the heavy hand of the Federal Government to say do it this way, especially when exactly 

what we mean by this way is very difficult to ascertain. So I support the gentleman’s amendment. 

Mr. WATT. Would the gentleman yield? 

Mr. NADLER. Sure. 

Mr. WATT. Just for a second. Mr. Chairman, Mr. Scott has pointed out to me that there’s a wrong page reference in my amendment, so I ask unanimous consent on the second line of my amendment to change the number six to the number eight. 

Mr. COBLE. Without objection. 

Mr. WATT. Page number. Yeah. 

Mr. NADLER. I yield back. 

Mr. COBLE. The gentleman yields back. 

Ms. WATERS. Mr. Chairman? 

Mr. COBLE. The gentlelady from California. 

Ms. WATERS. I move to strike the last word. 

Mr. COBLE. The gentlelady is recognized. 

Ms. WATERS. Let me oppose the amendment because I think if 

you have no punishment, no enforcement, and simply a Sense of 

Congress, that you’re going to end up with these entities doing exactly what they want to do. I think that it is generally understood 

or accepted, you know, throughout this country, that eminent domain for public use is acceptable. And the citizens have a right to 

oppose it, and to the degree that citizens are not aware of their 

rights, or they don’t feel powerful enough to fight City Hall, they 

do get run over. And that happens in many poor communities and 

minority communities. 

When eminent domain for the taking of private property for private use hits a better off community, a more well-financed community, they fight it. That’s why you have this case that wound its 

way up to the Supreme Court. 

55 

And so I think that when you start to make exceptions, that’s 

where you get in trouble. 

It should be straightforward, and eminent domain for public use, 

as it is understood, should remain. This bill should not in any way 

try to deal with that. This bill should simply say that there should 

be no taking of private property for private use and we should have 

the sanctions in the bill to say if you do it, you can’t get any Federal money, and if you return it in 2 years and make the person 

whole that you took it from, then you will be eligible again. That’s 

all the bill should do. 

Mr. WATT. Will the gentlelady yield? 

Ms. WATERS. Not yet. 

When you start to list what you think is acceptable—and much 

of it is redundant because it is already acceptable for, you know, 

public use—but you really get into trouble when you start to list 

these exceptions that really protect certain developments and allow 

them to be used for private use. That’s where you get in trouble. 

You can’t have it both ways. 

If you respect property rights and you want to protect property 

rights, you will be straightforward with it, and you would simply 

say no taking of private property for private use, period. That’s all 

you have to say. 

You don’t have to list any exceptions. You don’t have to talk 

about protecting public developments. That’s already protected in 

law and in the Constitution. 

So if there’s any altering of the bill or amending the bill, I think 

that the amendment that I offered right in the beginning would 

take care of all of this. We wouldn’t even be in this discussion. It’s 

only when you try to have it both ways and you want a little bit 

of room so that some private takings can be okay for private use. 

That’ when you get into trouble. 

And, yes, I’ll yield to the gentleman from North Carolina. 

Mr. WATT. I thank the gentlelady for yielding. 

The problem I have with the approach, though, is that leaves you 

able to condemn properties still for the removal of blight. That’s a 

public purpose. 

Ms. WATERS. No. 

Mr. WATT. And—isn’t it? 

Ms. WATERS. No. 

Mr. WATT. Well, I don’t think there’s anything in this bill that’s 

going to change that. It is generally forever and a day as long as 

I’ve known been a public purpose that the removal of blight is a 

public purpose. 

So here’s where you’re going to end up unless you deal with this, 

you give people—give public local governments the right to condemn for the removal of blight, but then there’s no way—so then 

you have all this property sitting in the middle of our neighborhoods vacant and empty and nothing can be done with it because 

unless the city or the local government is going to build a retail establishment, you can’t go into any kind of public-private partnership under that arrangement. You don’t want the city to start 

going into business enterprise. 

So then all you can do is take the property and let it sit there 

vacant. 

56 

Ms. WATERS. Reclaiming my time. I think that what you have 

described is an extended definition and understanding of the taking 

of private property for public use. That is not the accepted definition of the taking of private property under eminent domain laws. 

And you will not find that it is used in that manner consistently 

throughout this country. It is only—that is only attempted in 

places where people don’t fight back and people don’t understand 

what the generally accepted definition is of the taking of property. 

Mr. COBLE. The gentlelady’s time has expired. The question occurs on the Watt Amendment. All in favor say aye. 

Mr. SCOTT. Mr. Chairman, I move to strike the last word. 

Mr. COBLE. The gentleman from Virginia is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, I support 

the amendment, and I’m opposed to the underlying legislation, 

which is the response to the Kelo decision. 

By enacting this legislation, we’re undermining State’s rights 

and assuming the role of City Council. 

The fact that Members of Congress disagree with the decision of 

a locality in this regard is not—does not mean that we should 

change Federal law. So we should not create a Congress prerogative to either encumber the rights of States or their political subdivisions to make such decisions—when they make such decisions 

or penalize them for decisions that are theirs to make. 

Mr. Chairman, even if we disagree with the judgment of the local 

elected officials, we should not change the law. We’re elected, Mr. 

Chairman, as Members of Congress, not members of local City 

Councils. 

Mr. Chairman, it is impossible for Congress to draw a bright line 

separating those cases in which economic development is appropriate for a particular area and when it is not. 

This is for the local City Council to determine. Economic development is a process, clearly distinct from simply taking property from 

person A and giving it to person B for a ‘‘commercial enterprise 

carried on for profit.’’ Trying to define it either affirmatively or 

through exclusions would either result in an overbroad or under inclusive result. 

It would be impossible for Congress to define economic development so that it covers situations we want it to cover, such as the 

condemnation to eliminate blight, whatever that is, in an essentially deserted area to create an industrial park and not cover instances that we would not want to cover, such as taking the home 

of a woman who was born in the house, lived there all here life, 

and raised her children there to build a hotel. 

It is not our job to do so. The needs of a particular community 

and the government interest in taking over rights of individual 

property owners are a balance that we must leave to the localities. 

We have to entrust individual localities to use good judgment in assessing their own needs, and sometimes it might mean taking the 

property for the purpose of economic development; sometimes it 

might not; sometimes we will agree, and sometimes we’re not going 

to agree. 

But I can’t think of anymore fitting example than we’ve had this 

discussion is that the D.C. stadium issue. I find it ironic that at 

the same time we’re making up this bill, Washington, D.C. is using 

57 

eminent domain to build a baseball stadium. And just listen at the 

result. 

Depending on how the title of the stadium is held, it might be 

okay or not okay. If they soak the public for $300 million to build 

the thing, well, that would be okay. 

If the owner decides to build it on his own, then he can’t use eminent domain. You can go around the country and see all different 

kinds of ways that stadiums are built; some with a little private 

ownership; some public-private—all kinds of different ways. Some 

could have used eminent domain under this bill. Some could not. 

The fact is, Mr. Chairman, that the World Trade Center and the 

Lincoln Center in New York, the Baltimore Inner Harbor, President Bush’s stadium in Houston were all made possible by taking 

for purpose of economic development, and they all used eminent domain. We can agree or disagree whether these should have—

whether they provide a benefit for their communities, but we 

should I think agree that those projects should not have been rendered illegal as they would be under this bill. 

Sitting here in Washington, on Capitol Hill, we should not have 

the final say on projects such as these nor should we be enacting 

legislation to punish States or their political subdivisions by withholding Federal funds or determining which projects can go forward, and which cannot. 

Mr. Chairman, if we cannot leave eminent domain to the States, 

then we ought to concentrate on the root issues that upset people, 

such as the lack of a guarantee for just compensation, including replacement costs, not just technical appraised value, relocation expenses for owners, as well as tenants, whether it’s in residential or 

commercial context. 

The bill does nothing to ensure that displaced individuals receive 

not only reasonable replacement value, but compensation for goodwill of businesses and due consideration for the length of time a 

family or business has been in the particular area. 

And there’s nothing in the bill to deal with the fact that victims 

of eminent domain are usually poor and minority. Let’s put some 

protection in eminent domain to protect the poor and minorities 

from abuse. There’s nothing in the bill to do that. 

I’d like to submit, Mr. Chairman, letters from the National 

League of Cities and the National Conference of State Legislatures, 

which not surprisingly opposed the legislation, and, Mr. Chairman, 

I agree with their assessment that the decision of when property 

should be taken and when it should not should be made at the 

local and State level, not on a congressional level in the abstract. 

And, Mr. Chairman, I ask unanimous consent for those letters to 

be entered into the record. 

Mr. COBLE. Without objection. 

[The information follows:] 

58 


4128F1.eps
59 


4128F2.eps
60 


4128E1.eps
61 


4128E2.eps
62 

Mr. SCOTT. And I yield back the balance of my time. 

Ms. JACKSON LEE. Mr. Chairman? Mr. Chairman? 

Mr. COBLE. All right, Mr. Scott. Folks, I’m going to try one more 

time. 

Ms. JACKSON LEE. Mr. Chairman? 

Mr. COBLE. I failed again. The gentlelady from Texas. 

Mr. COBLE. For what purpose does the gentlelady seek recognition? 

Ms. JACKSON LEE. I ask to strike the last word. 

Mr. COBLE. The gentlelady is recognized. 

Ms. JACKSON LEE. I thank the Chairman very much for his indulgence. I think the overwhelming impact, or the shocking impact, 

of the recent Supreme Court decision causes the need for the debate on this question. I am quarreling with the underlying bill, 

which I happen to be a co-sponsor of, but I’m not quarreling with 

the premise. And that is that, in spite of my good friends, the State 

Legislators and the National League of Cities, which I’ve served as 

a member of the board as a member of the Houston City Council, 

I do think that there is a need for a strong statement to be made 

on behalf of the United States Congress. 

The act of the Supreme Court was egregious as it relates to the 

Kelo decision. It made a statement that they could take, without 

due process, private property for a public use, in this instance economic development. I am concerned, as the gentlelady from California has so noted, the chronicling of exceptions, and there is a 

long list. I’m probably going to support the underlying bill so that 

it can make its way through to the floor of the House, and then 

hopefully have some sort of effective discussion between the House 

and the Senate. 

With respect to my colleague from North Carolina, I’m not sure 

if the best approach is to retain only a sense of Congress, because, 

as I said, I think that the decision was egregious enough, I guess, 

from the perspective of so many that it warrants an effective response. This bill may not be the best response because it delineates 

a number of exceptions which may add more confusion than what 

we have now. 

One of the other elements that I’d like to raise, and I join with 

the comments that have been made that there are no protections 

against communities—or for communities who would have their 

property taken on the pretense of eliminating blight. And I raise 

this issue because we have a serious concern to address with respect to the Hurricane Katrina survivors and those who have left 

properties in Mississippi, Alabama, and Louisiana. Now Wilma has 

waged a devastating impact. We know that the eyes of the culprits, 

economic developers—visionaries, allegedly—are eyeing the properties of those in New Orleans. 

One of the things that poor people do not understand, and I do 

not know the Louisiana property laws, is that the house may be 

lost but you may have some vested interest, and should have some 

vested interest in the plot of land. If that is the case, then they’re 

going to be subjected to massive eminent domain or the taking, 

under the pretense that their property is untenable and not viable 

to be rebuilt because of where it is, or that it is for the betterment 

of New Orleans to rebuild it as a fabulous resort city. 

63 

So I am concerned that this bill does not—and it was obviously 

written, maybe, before Hurricane Katrina, but we’re now taking it 

up in the midst of it—does not take into consideration the needs 

of those populations, the needs of impoverished people, the concerns about blight, because those of us who have lived in blighted 

neighborhoods, grown up in blighted neighborhoods, we know that 

our areas have been encroached upon and many of our homesteads 

that we grew up in don’t exist anymore, because it was unsightly 

to some and it was a prime area to take over, such as what is happening in Anacostia today in Washington, D.C. 

So I would just simply to proponent Mr. Goodlatte and Mr. Sensenbrenner—Mr. Goodlatte, I see that you’ve kept the rule protection in, but I raise this concern with you because I do think that 

this legislation could have been less riddled with exceptions and we 

could have made our point very clear in following the sort of simplicity of the gentlelady from California’s point, get right to the 

point of what we want to do, is to protect people from having their 

private property condemned for private use. And I think that’s a 

simple state of affairs that we could have written in this bill and 

left to the local jurisdictions their way of complying with that Federal law. And believe me, they would have been able to build whatever they wanted to build, to build whatever hospitals, whatever 

public schools, with that kind of legislation. But they would not 

have been able to come and build a waterfront, a beautiful waterfront, and taking people’s properties or other kinds of properties to 

take for someone else’s pretty development. 

And that’s the difficulty I have with this legislation and, as well, 

my concern with the amendment that is now before us. 

I yield back. 

Mr. COBLE. The gentlelady yields back. For what purpose does 

the gentleman from California seek recognition? 

Mr. LUNGREN. Strike the requisite number of words. 

Mr. COBLE. You will be recognized for 5 minutes. 

Mr. LUNGREN. Mr. Chairman, I have to respond to the comments 

by my friend from Virginia, who basically is asking us why are we 

here and what are we doing with this. He suggests we don’t need 

to do anything. 

I would just refer as to the words in the dissent in the Kelo case 

in which the dissent made the point that as a result of the majority’s decision, now any property may now be now be taken for the 

benefit of another private party. But the fallout from this decision 

will not be random. The beneficiaries 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 for 

those with fewer resources to those with more. And then they say 

the Founders cannot have intended this perverse result. 

Now, I remember the words of the minority leader, I think 1 or 

2 days after the Kelo decision, when asked whether Congress ought 

to act, and she said no, and she looked at the Kelo decision, in her 

words, It was as if God has spoken. There are some of us who don’t 

believe the Supreme Court speaks as if it has divine intervention 

powers. And yet, the influence of that decision, Kelo, is to essentially give free rein to local communities to violate what many of 

64 

us think is the original intent of the Founders when they enacted 

this provision in the Constitution. 

This simply says that to the extent we in this branch of Government, the Federal branch of Government, can influence whether or 

not we are going to distort the meaning of the Founders in the 

original sense, that we can act and say that Federal dollars will not 

be used for this purpose. That’s solely what we are doing. If they 

want to make other decisions at the local level, they are perfectly 

entitled to do that using their own money. And they can say, We 

make the decision that we’re going to expand the idea of how we 

can take property from private people and use it for economic purposes, and we are so sure of our position there that not only do we 

believe that our constituents will support us, but we don’t need 

Federal funds to do it. 

And that’s simply all we are doing. It is our only ability to respond to the Supreme Court decision, which roundly was seen as 

an aberration, I would say. I’ve never seen such condemnation on 

both Democrat and Republican sides. And to those who say, you 

know, it took something like this to wake up some on our side as 

to the abuses that have taken place in the past, if that’s a criticism, I’ll accept that criticism. But it doesn’t render the essential 

analysis as inappropriate or ineffective or without content. 

Frankly, I didn’t think we’d ever see a day when the Supreme 

Court would go this far and give such wide parameters to abuse 

in this area of the Constitution. And for that reason, I think it’s 

an imperative that we act on this bill and we act on this bill now, 

and we not gut this bill with amendments which render the bill ineffective. 

Ms. WATERS. Will the gentleman yield? 

Mr. LUNGREN. I’d be happy to yield to my friend from California. 

Ms. WATERS. Well, you know, essentially I agree with you and 

everything that you have said. I feel the absolute same way. And 

this decision I think was one of the most stunning decisions I’ve 

experienced. And so I don’t understand, then, given that we both 

think that way, why you would accept any exceptions in this bill, 

to the taking of private property for private use. Why would you 

agree that there should be some exceptions? 

Mr. LUNGREN. I don’t believe that I would consider these exceptions in the definitional sense. Rather, we are establishing bright 

lines between that which is public use and that which is not public 

use. And it seems to me if we have missed some, we can go back 

and we can look at that. With the question of stadia that people 

have talked about in terms of private stadia and public stadia, I 

think we’ve gone far enough here. At the same time, I would look 

at what I think are the abuses right now in terms of bonds and 

tax exempt bonds used for what essentially are private purposes in 

some of these stadiums. But that’s a different issue, and I don’t 

think we ought to confuse it here. 

And I thank the gentlelady for her comments, and it is nice to 

see that we can agree on something. 

Ms. WATERS. Almost. 

Mr. LUNGREN. Well, I think we’re both going to vote for the bill. 

Mr. COBLE. Mr. Watt, I was going to try one more time on your 

amendment, but I see the gentleman from Alabama wants to be 

recognized, and the chair recognizes him. 

65 

Mr. BACHUS. Mr. Chairman, there’s one thing that’s been said 

today that——

Mr. COBLE. For what purpose does the gentleman seek recognition? 

Mr. BACHUS. I beg your pardon? 

Mr. COBLE. For what purpose does the gentleman seek recognition? Strike the last word? 

Mr. BACHUS. Strike the last word. 

Mr. COBLE. The gentleman is recognized for 5 minutes. [Laughter.] 

Mr. BACHUS. Mr. Chairman, one thing that has been said today 

that we need to be very careful about, and we’ve talked about railroads. In this country since we started building railroads in the 

1820’s, we have known that railroads, although they were private 

companies in many cases, most cases, now almost all cases, that 

they were constructed for the public benefit. And today railroads—

and I’m not talking about Amtrak, I’m talking about private freight 

railroads. Shippers will tell you today, in fact shippers all over the 

country urge a lot of times that a railroad be built so that they can 

have two different sources to ship their goods on. We could not ship 

agriculture goods in this country without our railroads. And coal. 

We couldn’t heat our homes. The lights in this building are dependent on railroads. Every water system, clean drinking water is dependent on the railroads because the railroads ship 99 percent of 

your chlorine. 

And for that reason, as we talk about private use, I hope that 

we will remember that whether it’s bringing coal from the West to 

the East or whatever, that taking land for railroads is really a traditional use. 

Mr. NADLER. Will the gentleman yield? 

Mr. BACHUS. And the reason railroads, you know, not barges, because, you know, our barges are on navigable waterways, we provide those paths. Airports, we build airports. Even though there 

are private airplanes, I hope we’re not going to say here that because it’s private companies that land at those airports, we’re going 

to continue—seize lands for the airports. 

Mr. NADLER. Would the gentleman yield on that point? 

Mr. BACHUS. I will. 

Mr. NADLER. I agree with the gentleman. I would point out that 

under a reading of the bill, and I don’t know how a court would 

come out, if you look at page 8, where it exempts certain things 

from the provisions of the bill, it says ‘‘conveying private property 

to public ownership, such as for’’ various things, ‘‘that makes the 

property available for use by the general public as of right, such 

as a railroad, public utility’’ et cetera, I would read that to mean 

a passenger railroad, because the passenger railroad is a common 

carrier and anybody can get on it, whereas a freight railroad such 

as you’re talking about operates by contract, and doesn’t have to 

accept any shipper. 

Mr. BACHUS. We’ve used as one example of what we would or 

wouldn’t do, where we would seize private——

Mr. NADLER. What I’m saying, sir——

Mr. BACHUS.—private property for a private industry. We’ve always done that——

66 

Mr. NADLER. No, no, I’m agreeing with you. What I’m saying, sir, 

is that as I read this bill, that would change. And a passenger railroad would be exempted from the provision of the bill, but a freight 

railroad that operates by contract might not be exempted, as you 

and I would both wish. 

Mr. GOODLATTE. Would the gentleman yield? 

Mr. BACHUS. I would yield. 

Mr. GOODLATTE. I thank the gentleman for yielding. There is no 

difference. Both a private freight railroad and a private passenger 

railroad are common carriers under the law and——

Mr. NADLER. Oh, that’s true. 

Mr. GOODLATTE.—completely exempted under this language. 

Mr. BACHUS. If it says ‘‘common carrier,’’ that includes our 

freight——

Mr. SCOTT. Will the gentleman yield? 

Mr. BACHUS. I think my time is up. I will yield if I have any 

time. 

Mr. COBLE. The gentleman has 1 minute left. 

Mr. BACHUS. I’ll yield to the gentleman from Virginia. 

Mr. SCOTT. I point out that the requirement under the law, with 

or without the Supreme Court decision or with or without the bill, 

has to be public benefit. And we’ve heard that the stadiums may 

count and may not. I guess it depends on if the skyboxes are publicly auctioned rather than you can pick and choose. You might lose 

your exemption under this. Industrial parks are clearly private, but 

there’d be something that the city council might want to use eminent domain to put together an industrial park. But it has to be 

public benefit. And that doesn’t change under this amendment. You 

still have to have public benefit. 

Mr. BACHUS. Again, let me just summarize again. I just, as we 

continue to use examples, I hope we’ll leave the railroads out, because it’s not a good example. 

Mr. COBLE. Does the gentleman yield back? 

Mr. BACHUS. And I yield the balance of my time. 

Mr. COBLE. Folks, before the Watt amendment expires, I want to 

call the question on the Watt amendment. 

All in favor, say aye? 

Opposed, no? 

It appears the noes have it. The noes have it, and the amendment fails. 

Are there additional amendments? 

Mr. CANNON. Mr. Chairman? 

Mr. COBLE. The gentleman from Virginia, Mr. Goodlatte. Then 

I’ll get you next, Mr. Cannon. 

Mr. GOODLATTE. Thank you, Mr. Chairman. I appreciate the gentleman from Utah forbearing, but while we’re talking about this 

particular section of the bill, I do want to offer an amendment, 

which I have at the desk. Amendment number 1. 

Mr. COBLE. The clerk will report. 

The CLERK. Amendment to H.R. 4128, offered by Mr. Goodlatte. 

Mr. COBLE. Without objection, the amendment will be considered 

as read. 

[The amendment offered by Mr. Goodlatte follows:] 

67 

Mr. COBLE. The gentleman is recognized for 5 minutes. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

This is an amendment that makes it clear that a public utility, 

which is commonly understood as a type of common carrier, Black’s 

Law Dictionary, for example, defines public utility as follows: A 

company that provides necessary services to the public, such as 

telephone lines and service, electricity, and water. A person, corporation, or other association that carries on an enterprise for accommodation of the public, the members of which are entitled as 

a matter of right to use its facilities. 

The Government could take property for use as a public utility 

under the bill. This language would make that very clear. 

Mr. COBLE. The question occurs on the Goodlatte amendment. 

All in favor, say aye? 

Opposed, no? 

It appears the ayes have it. The ayes have it, and the amendment passes. 

Mr. NADLER. Mr. Chairman? 

Mr. COBLE. Are there additional amendments? The gentleman 

from New York, Mr. Nadler, is recognized. 

Mr. NADLER. Thank you, Mr. Chairman. 

I have the other amendment at the desk. 

Mr. COBLE. The clerk will report. 

Ms. JACKSON LEE. Mr. Chairman? I’m not recorded. 

Mr. COBLE. The gentlelady from Texas? There’s been no rollcall 

vote, Ms. Jackson Lee. 

Ms. JACKSON LEE. Was that a vote? 

Mr. COBLE. Voice vote. 

Mr. NADLER. It’s not the final passage? 

Mr. COBLE. No. 

Ms. JACKSON LEE. Okay. Thank you. 

The CLERK. Amendment to H.R. 4128, offered by Mr. Nadler. 

Page——

Mr. COBLE. Without objection, the amendment will be considered 

as read. 

[The amendment offered by Mr. Nadler follows:] 


4128G.eps
68 

Mr. COBLE. The gentleman is recognized for 5 minutes. 

Mr. NADLER. Thank you. 

Mr. Chairman, there’s a problem, I believe, in the bill that says—

if you look at the bottom of page 3, section 4(b), it says ‘‘Limitation 

on bringing an action. An action brought under this act may be 

brought if the people is used for economic development following 

the conclusion of any condemnation proceedings condemning the 

private property of such property owner, but shall not be brought 

later than 7 years following the conclusion of any such proceedings 

and the subsequent use of such condemned property for economic 

development.’’

Now, I’m not sure how that is supposed to be read, whether it 

means you can’t bring it more than 7 years after the conclusion of 

the condemnation proceedings or more than 7 years after the subsequent use of such condemned property for economic development, 

10 or 12 years after the conclusion of the condemnation proceedings. 

But regardless of that question, this holds open—Mr. Goodlatte, 

I hope you listen to this—this holds open the possibility of a lawsuit, whose successful conclusion would deprive the city or the 

State or whoever of Federal funds for 2 years, for years—either 7 

years or perhaps longer, depending how you read that, after the 

condemnation proceedings if—if the land that is condemned, ostensibly for public use, is later used for a private use. 


4128H.eps
69 

Now, let me give you an example. Suppose that a city decides to 

build a 5-mile-long subway line and condemns property for that 

public purpose. And 10 years later, they determine they only have 

the funds to complete 3 miles of the line. So the land that they’ve 

condemned for one or two stops along the line is never going to be 

used. So they’re now with a piece of surplus property that was supposed to be used for a subway stop, but the line stopped short of 

that. So now they’re going to sell it for a private purpose. 

Well, they would seem to be subject now to a lawsuit. So what 

this amendment says is that you shall not be subject to the lawsuit 

if the property were condemned in good faith for a public use, as 

defined in the act, and is subsequently used later because of a 

change in circumstances not reasonably foreseeable at the time of 

the condemnation for other purposes, for private economic development. 

In other words, you condemn land in good faith for a public use, 

later something happens that was not foreseeable, and it results in 

your using that land—selling it for private economic development, 

you should not hold the city or State open for 7 years or longer to 

losing 2 years of Federal aid then. It doesn’t serve the purpose of 

the bill and it really puts a cloud on all the city finances for the 

future. 

Mr. CONYERS. Mr. Chairman? 

Mr. NADLER. So I urge the adoption of the amendment and I 

yield back. 

Mr. GOODLATTE. [Presiding] I thank the gentleman. The chair 

recognizes himself in opposition to the amendment. 

I appreciate the gentleman’s concern and the circumstances. 

However, the phrases that are used in this amendment—‘‘good 

faith,’’ ‘‘reasonably foreseeable’’—move us back in the direction of 

the Kelo decision of giving too much discretion to the courts to determine what we’re talking about. And I would strongly oppose it 

just because those are very, very subjective terms. What we’re trying to address here are specific uses that we’re allowing, and that’s 

where the language in the bill is headed. If we were to adopt this 

amendment, we would be moving back toward a situation where 

the court would be able to determine what indeed good faith is, 

what indeed reasonably foreseeable is. 

I would yield to the gentleman. 

Mr. NADLER. Yes, the court would have to determine that. But 

if you don’t do this, if you don’t do this, then you’re leaving open 

any city or State to a real problem in case something happens. You 

can’t foresee everything. And again, let me give you that example. 

Ms. WATERS. Will the gentleman yield? 

Mr. NADLER. No, I won’t yield for the moment. In good faith——

Mr. GOODLATTE. I have the time, so——

Mr. NADLER. Oh. 

Mr. GOODLATTE. I will allow the gentleman to make his point, 

then I will yield to the gentlewoman. 

Ms. WATERS. Thank you. 

Mr. NADLER. But in good faith, there is a public purpose, something subsequently changes years later. You have to allow for some 

flexibility. 

Ms. WATERS. Will the gentleman yield? 

70 

Mr. GOODLATTE. Reclaiming my time, I will say to the gentleman 

I would have to oppose this amendment. I would be happy to work 

with the gentleman on the matter that he is concerned with, but 

I cannot support this amendment. 

I yield to the gentlewoman. 

Ms. WATERS. Thank you. And I would agree with you, Mr. Chairman. If in so-called good faith private property is taken and then 

it is not used, this bill is designed to give it back to the people you 

took it from, not to talk about, Oh, now I can use it for something 

else. So I would oppose the amendment. 

Mr. CONYERS. Mr. Chairman? 

Mr. GOODLATTE. The gentleman from Michigan is recognized for 

5 minutes. 

Mr. CONYERS. Well, I won’t need 5 minutes because I don’t want 

States and cities to get into the habit of taking property for a public purpose and then later deciding, intentionally or unintentionally, that they need to use it for economic development. To allow 

them to use condemned property for economic development, so long 

as it was taken originally in good faith, is, I say to my friend from 

New York, a bit of a stretch. And I think it goes away from the 

concept that many of us here, and certainly I as a proponent of the 

measure before us, we want to tighten this thing up. And I’m not 

sure if that does it. And I reluctantly oppose the amendment of my 

friend from New York. 

I return the balance of my time. 

Mr. GOODLATTE. The question occurs on the amendment offered 

by the gentleman from New York. 

All those in favor, respond by saying aye? 

Opposed, no? 

In the opinion of the chair, the noes have it and the amendment 

is not agreed to. 

Are there further amendments? 

Mr. CANNON. Mr. Chairman? 

Mr. GOODLATTE. The gentleman from Utah. 

Mr. CANNON. There are two amendments at the desk under the 

name of Mr. Flake that I would like to offer en bloc. 

Mr. GOODLATTE. The clerk will report the amendments. 

The CLERK. Amendment to H.R. 4128, offered by Mr. Cannon. 

Page 9, line 10, insert ‘‘or through’’ after ‘‘distributed to.’’

Amendment to H.R. 4128, offered by Mr. Cannon. Add at the end 

the following: 

Mr. GOODLATTE. Without objection, the amendments will be considered as read. And the chair seeks unanimous consent for the 

amendments to be considered en bloc. 

There being no objection, the amendments will be considered together. 

[The amendments offered by Mr. Cannon follow:] 

71 


4128I.eps
72 


4128J.eps
73 

Mr. GOODLATTE. The gentleman from Utah is recognized for 5 

minutes. 

Mr. CANNON. Thank you, Mr. Chairman. 

In this legislation we’re trying to prohibit Federal funds being 

distributed to States or political subdivisions from being used for 

eminent domain for economic development. That does not prevent 

Federal funds from being passed through States or political subdivisions for such uses. By inserting, in the first—the short amendment, ‘‘or through’’ after ‘‘distributed to,’’ we clarify that Federal 

funds would not be able to be funneled by a State or County to another political subdivision to circumvent the principles of this legislation. And I urge the Committee to adopt that portion of the en 

bloc amendment. 

The second amendment, the longer amendment, clearly states 

that the policy of the United States to protect and promote private 

property rights is prescribed under the United States Constitution. 

Beyond the Kelo decision, we are confronted with the problems our 

Government has in protecting private property rights in our country, especially in the West. Prior to the Kelo decision, the Supreme 

Court rulings had reaffirmed private property rights but also ruled 

that Government actions other than condemnation may result in 

taking, for which compensation is required. Over 80 percent of Mr. 

Flake’s home State, Arizona, and over 2⁄3 of my home State, Utah, 

are public lands. And the decisions out of Washington, D.C. have 

negatively affected landowners, and just compensation for regulatory takings has been denied. So it is my hope that this amendment will send a signal to bureaucrats here in Washington that 

this Government’s policy is to protect the rights of landowners in 

the United States. 

Thank you, Mr. Chairman. With that, I yield back the balance 

of my time. 

Mr. GOODLATTE. Will the gentleman yield? 

Mr. CANNON. I will be happy to yield. 

Mr. GOODLATTE. I have no objection to these amendments and 

would be happy to accept them, on my part. Is there further discussion on the amendments? 

Being none, the question occurs on the amendments. 

All those in favor, respond by saying aye. 

Opposed, no. 

In the opinion of the chair, the ayes have it. The amendments 

are agreed to. 

Are there further amendments? 

The question occurs on the motion to report the bill, H.R. 

4128—— 

Mr. CHABOT. Mr. Chairman? 

Mr. GOODLATTE. Who seeks recognition? The gentleman from 

Ohio. 

Mr. CHABOT. Move to strike the last word. I would just ask unanimous consent to have my opening statement entered into the 

record, and yield back. 

Mr. GOODLATTE. Without objection, so ordered. 

Mr. CHABOT. Thank you. 

[The prepared statement of Mr. Chabot follows:] 

74 

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE

CONSTITUTION

The Fifth Amendment to our Constitution provides critical protections that prevent the government from unlawfully seizing private property. There should be no 

doubt that the Fifth Amendment is essential to protecting our basic freedoms and 

the economic vitality of our nation. Yet it is a right so fundamental, that it has been 

taken for granted since the founding of our nation. 

That, of course, changed with the Supreme Courts decision in Kelo vs. City of New 

London—a decision that places all privately held property at risk to government seizure. 

The idea that a persons home or business can be taken by the government and 

transferred to another private entity simply to allow the government to collect additional tax revenue seems anathema to the values Americans cherish. 

However, the Supreme Court has now thrown its weight behind this distinctly unAmerican ideal by ruling that economic development can be a public use under the 

Fifth Amendment’s Takings Clause. Essentially, the court held that private property 

can be taken from homeowners through a process called eminent domain and put 

to public use by a private business. 

Few would question that the Constitution provides a legitimate role for eminent 

domain when the purpose is a true public use and the property owner receives just 

compensation. Properly used, eminent domain should give communities an option of 

last resort to complete the development of roads, schools, utilities and other essential public infrastructure projects. 

A few weeks ago, however, I chaired a hearing in the Constitution Subcommittee 

that made it clear that eminent domain is not always properly used and that Kelo 

may further open the floodgates to abuse. In fact, we were told that a minimum 

of 10,000 properties were either seized or threatened with condemnation for private 

development in the five-year period between 1998 and 2002. And following the Kelo 

decision, high-profile economic development takings were on the fast track from 

Connecticut to California with judges across the country relying on Kelo to support 

government takings that forcibly transfer private property from one owner to another. 

As a former member of the Cincinnati City Council and Hamilton County Commission, I would be remiss if I did not mention my concern for the unintended consequences that congressional action could have on communities—especially struggling urban areas—throughout the United States. My friend from Ohio and former 

Mayor of the City of Dayton, Congressman Mike Turner, who leads the Speaker’s 

‘‘Saving America’s Cities Working Group’’ has been a strong advocate for revitalizing 

our nations cities and raising these same concerns about unintended consequences 

to urban areas. 

During our hearings in the Constitution Subcommittee, Indianapolis Mayor Bart 

Peterson warned that overly broad legislation could have a ‘‘chilling effect’’ on urban 

renewal efforts. He asked that Congress work to balance the important interests involved and recognize that the availability of eminent domain has led to more job 

creation and home ownership opportunities than any other economic development 

tool. If that tool vanishes, he said, redevelopment experienced in many communities 

in recent years would literally come to a complete halt. 

Now, I recognize that some of those concerns may be overstated. We should not 

lose sight of the fact that local governments have many different kinds of incentive, 

zoning, and code enforcement tools to promote economic development without having to resort to the taking of private property. However, Mayor Peterson raises some 

credible issues that we should continue to consider as we move forward with this 

legislation. 

I want to thank Chairman Sensenbrenner and ranking-member Conyers for their 

leadership on this critical issue. Many members of this Committee—myself included—raised concerns about a long-term assault on property rights in America 

even before the Kelo decision. Today, we have an opportunity to defend an important constitutional principle and the fundamental rights of our constituents. As Justice O’Connor wrote in her Kelo dissent, ‘‘Nothing is to prevent a state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm 

with a factory.’’

Mr. GOODLATTE. The question occurs now on the motion to report 

the bill, H.R. 4128, favorably as amended. 

All in favor, say aye. 

Opposed, no. 

75 

In the opinion of the chair, the ayes have it. The motion to report 

favorably is adopted. 

Without objection, the bill will be reported favorably to the 

House in the form of a single amendment in the nature of a substitute incorporating the amendments adopted here today. 

Mr. SCOTT. rollcall? 

Mr. GOODLATTE. A rollcall vote is requested. All those in favor 

of reporting the bill favorably, respond by saying—will respond favorably to the clerk’s call of the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. Mr. Smith? 

[No response.] 

The CLERK. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. Mr. Lungren? 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. Mr. Jenkins? 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. Mr. Inglis? 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. Mr. Hostettler? 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. Mr. Green? 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. Mr. Keller? 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. Mr. Issa? 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Feeney? 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. Mr. Franks? 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. Mr. Gohmert? 

[No response.] 

The CLERK. Mr. Conyers? 

Mr. CONYERS. Conyers votes aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

[No response.] 

76 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. No. 

The CLERK. Mr. Nadler, no. Mr. Scott? 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. Mr. Watt? 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

[No response.] 

The CLERK. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Ms. Wasserman Schultz? 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. Mr. Chairman? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Chairman, aye. 

Mr. COBLE. Are there Members who wish to vote? 

The gentleman from California? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Mr. GOODLATTE. The gentleman from California, Mr. Lungren? 

[No response.] 

Mr. GOODLATTE. Mr. Gohmert? 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. 

Mr. COBLE. The gentleman from Massachusetts, Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. 

Mr. GOODLATTE. The clerk will report. 

The CLERK. Mr. Chairman, there are 27 ayes and 3 noes. 

Mr. GOODLATTE. And the bill is reported favorably. 

Without objection, the bill will be reported favorably to the 

House in the form of a single amendment in the nature of a substitute incorporating the amendments adopted here today. 

Without objection, the staff is directed to make any technical and 

conforming changes. All Members will be given 2 days, as provided 

by the House rules, in which to submit additional, dissenting, supplemental, or minority views. 

77 

That concludes the markup. I thank everyone for their participation. Without objection, the markup is adjourned. 

[Whereupon, at 6:22 p.m., the Committee was adjourned.] 

(79) 

ADDITIONAL CONCURRING VIEWS

At markup, I intended to offer an amendment to this legislation 

creating an exception to the definition of ‘‘economic development’’

for the development of affordable housing for low-income residents. 

I ultimately decided not to offer this amendment, however, based 

on my recognition, and the apparent recognition of my colleagues, 

that this bill as introduced does not in any way limit the ability 

of states and local governments to exercise their eminent domain 

powers for the building of affordable housing for low-income residents. In fact, during markup, I pointed this out and received no 

objections from my colleagues. 

The provision of low-income housing, whether by a for-profit or 

a non-profit entity, should not constitute ‘‘economic development’’

under the definition in this bill because such activity constitutes 

neither ‘‘commercial enterprise’’ nor an activity designed to ‘‘increase tax revenue, tax base, employment or general economic 

health.’’ Rather, the development of affordable housing for low-income residents constitutes a traditional public purpose for which 

eminent domain powers have long been recognized. Given that this 

bill will not in any way limit the exercise of eminent domain powers for the development of affordable housing, I concur in the Committee’s report. 

ZOE LOFGREN. 

(81) 

1 2005 Westlaw 1469529 (No. 04–108) (U.S. June 23, 2005). 2 U.S. Const. amend. V: ‘‘nor shall private property be taken for public use, without just compensation’’ (emphasis added). 

DISSENTING VIEWS

We share our colleagues’ concern that the Supreme Court’s recent decision in Kelo v. City of New London 1 could open the door 

to a dangerous expansion of the eminent domain power. We are 

also concerned that this legislation, far from providing a remedy for 

the historic abuses of eminent domain, will permit the sorts of injustices with which we are all too familiar while, at the same time, 

crippling local governments in the pursuit of their legitimate public 

duties. This poorly crafted bill, with broad, if uncertain, application, would place every state and locality in permanent peril, without providing the protection vulnerable communities need. 

We share the unanimous conviction that private property should 

never be taken for the private benefit of another private person. 

There can be no more fundamental meaning of the ‘‘public use’’ clause of the Fifth Amendment.2 The awesome power of eminent 

domain may not be exercised under our constitution, regardless of 

the extent of due process or compensation, if the purpose for which 

it is exercised is to benefit a private party rather than the public 

interest. 

The Supreme Court’s efforts to define ‘‘public use,’’ and Congress’ legislative efforts to do so, are at the heart of this debate. 

While the Supreme Court has left the outer boundaries of the 

definition of ‘‘public use’’ for future cases, the Committee has attempted to provide a bright-line test to settle the issue with finality. Unfortunately, a plain reading of the legislation, and the debate in the Committee on its meaning, show that the one thing it 

lacks is a bright-line. What exactly is permitted or prohibited appears to have been unclear even to the proponents of the legislation, many of whom could not agree on the meaning of the definitions, nor could they agree on the policy they were attempting to 

enact. 

If the legislative history so far shows anything, it is that Congress has no clear intent, and that the language it has chosen is 

even less clear. Courts and local governments trying to apply the 

standards in this bill will encounter rules so convoluted, they could 

not hope to comply with any reasonable degree of certainty. 

The costs of running afoul of this legislation would be catastrophic. Any taking, for any project, later determined to have been 

in violation of this statute, would result in the loss of two years of 

economic development funding for the state or local government, 

even if the project received no such funds. This determination and 

penalty could arise years, even decades, after the original taking. 

The financial cloud hanging over the entire jurisdiction ad infinitum would disrupt every aspect of local governance. 

82 

3Oversight Hearing on ‘‘The Supreme Court’s Kelo Decision and Potential Congressional Responses Before the Subcomm. on the Constitution of the House Judiciary Committee (2005) 

(Statement of Hilary O. Shelton at 2) (Hereafter ‘‘Shelton Testimony’’). 4 Id. Citing Bernard J. Frieden & Lynn B. Sagalyn, Downtown, Inc.: How America Rebuilds 

Cities 29, (1990). 5 Robert Caro, The Power Broker 967–8 (1974). 6 Renters are often innocent, and powerless, bystanders in this process. In poorer communities, absentee slum-lords have rights denied to their tenants. ‘‘Eminent domain is a vitally important tool. It is a power that can be abused, as the painful 

experience in Boston’s West End reminds us. But Boston is also a place where eminent domain 

has been used creatively. Consider the experience of the Dudley Street Neighborhood Initiative, 

which has enabled a low-income community in Roxbury to reclaim its future. The community 

confronted a serious problem. Absentee owners held decaying properties that stood in the way 

of redevelopment plans. The initiative lobbied the city to give it the power of eminent domain. 

The result of this public/private partnership has been a widely acknowledged improvement in 

the neighborhood. 

David J. Barron and Gerald E. Frug, Make Eminent Domain Fair for All, Boston Globe, August 12, 2005. 

For these reasons, we believe that this legislation is not ready to 

be considered by the full House, and we respectfully dissent. 

Takings, public works and displacement 

The history of eminent domain and displacement need not be 

fully recounted here. Suffice to say that the exercise of eminent domain has long fallen most heavily on the shoulders of poor, minority, immigrant, working class, and other communities lacking in 

political and economic power. As Hilary O. Shelton, Director of the 

NAACP Washington Bureau, told the Subcommittee on the Constitution: 

The history of eminent domain is rife with abuse specifically targeting racial and ethnic minority and poor neighborhoods. Indeed the displacement of African Americans 

and urban renewal projects are so intertwined that ‘‘urban 

renewal’’ was often referred to as ‘‘Black Removal.’’ 3

Mr. Shelton testified that the burden on minority communities 

has not been confined to projects involving private economic development of the type at issue in Kelo. Mr. Shelton cited a 1990 study 

showing that ‘‘90% of the 10,000 families displaced by highway 

projects in Baltimore were Africans American.’’ 4

In his seminal work on urban political power, The Power Broker, 

Robert Caro reports: 

[D]uring the seven 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.5

The record indicates that, in addition to the impact on property 

owners and their communities, families and small business who 

rent rather than own property suffer displacement often without 

compensation or a right to contest their displacement.6 These burdens, whether for classically public projects, or for economic develVerDate Aug 31 2005 00:10 Nov 04, 2005 Jkt 049006 PO 00000 Frm 00082 Fmt 6601 Sfmt 6602 E:\HR\OC\HR262P2.XXX HR262P2
83 

7Shelton testimony, at 2–3. 8 ‘‘No State or political subdivision of a state shall exercise its power of eminent domain * * * 

if that state or political subdivision receives Federal economic development funds during any 

fiscal year in which it does so.’’ H.R 4128, § 2(a). 9 H.R. 4128, § 4(b). 10 Id. 11 Id. § 2(c). 

opment projects, fall most heavily on those who can least afford the 

burden. As Mr. Shelton observed, ‘‘even if you dismiss all other motivations, allowing municipalities to pursue eminent domain for 

private development as was upheld by the U.S. Supreme Court in 

Kelo will clearly have a disparate impact on African Americans and 

other racial and ethnic minorities in our country.’’ 7

The penalty is disproportionate and threatens city and State financial solvency 

H.R. 4128 would impose a penalty on any jurisdiction out of all 

proportion to the harm, or even the offending project, involved. It 

would extend not just to those projects receiving federal economic 

development assistance, but to any activity by a state or local government, including those receiving no federal funds of any kind.8

Similarly, all economic development funds, including those having 

nothing to do with the project in question, would be lost to the 

state or local jurisdiction for two years. Unquestionably meritorious 

public projects, even those that do not use eminent domain, would 

lose funding. Because of the catastrophic loss of federal funds, the 

municipality would face bankruptcy, endangering all municipal 

functions. 

The jurisdiction would appear to face an open-ended risk of this 

expansive penalty. A property owner would have seven years from 

the conclusion of a condemnation proceeding to bring an action alleging a violation of the Act.9 The Act would allow such an action 

to be brought for an additional seven years following ‘‘the subsequent use of such condemned property for economic development’’ 10

This would appear to leave the jurisdiction open to legal attack, 

and expansive penalties, years, perhaps decades, after the initial 

development. If, at any time in the future, any portion of an otherwise permissible development is put to a prohibited use, an action 

may be commenced within seven years. There appears to be no 

point beyond which a jurisdiction could consider other uses of land 

without risking potentially catastrophic legal and financial exposure. 

Once the property is taken, the jurisdiction’s only recourse would 

be to return the property and ‘‘replace[ ] any other property destroyed and repair[ ] any other property damaged as a result of 

such violation.’’ 11 If this means what it appears to say, the government would be forced to clear the property previously taken, and 

restore any structures, including homes, to their previous condition. It does not specify how the subsequently vested rights of other 

parties are to be handled. A jurisdiction could conceivably be required to raze a half-acre plot in the middle of a multi-acre development and rebuild a home in order to protect the public fisc. 

This unpredictable, open-ended, and substantial financial exposure would be faced by any jurisdiction exercising eminent domain 

84 

12 § 8(1). By its own terms, the bill excludes any claims not involving a transfer of title. It 

would not include an assertion of a regulatory or other taking theory. While some have attempted to broaden the debate over Kelo to include so-called regulatory takings theories, neither 

the Court, nor the proponents of this legislation, has attempted to raise this far more dubious 

legal theory in this context. 13 § 8(1)(A). 14Mr. Nadler offered an amendment to strike the phrase ‘‘public facility,’’ which was rejected 

by the Committee. There was some doubt whether a stadium would be a permitted use. Rep. 

Goodlatte argued that a stadium might be a permitted use if it were open to the public as a 

matter of right, but that a shopping center could never be a permitted use because they are 

not, in his view, open to the public as a matter of right. Markup of H.R. 4128, Unofficial Transcript 159–160 (Statement of Mr. Goodlatte). Ms. Waters took the position that a stadium that 

was privately owned could never be a permitted use. Id. at 165. 15 Congress has expanded the power of eminent domain for transmission lines in recent energy 

legislation. Energy Policy Act of 2005, Pub. L. No. 109–58, § 216(e) 119 Stat. 594, 948 (2005). 

with respect to even one property. It would be a risk so great that 

cities would lose their ability to issue bonds. States would face 

whatever liability might be imposed on cities, and would suffer 

similar financial instability as a result of this uncertainty. Even if 

the penalty is never imposed, the mere uncertainty would be 

enough to place a cloud over any jurisdiction’s finances. 

The prohibition if over broad and unreasonably vague 

At the heart of the legislation is section 8(1) which defines ‘‘economic development.’’ It is the inherent vagueness of this definition, 

most of which consists of exceptions to the general definition, that 

makes the bill truly unworkable. 

The prohibition applies only to non-consensual takings, and only 

to the actual conveying of that property from one private person to 

another private person ‘‘for commercial enterprise carried on for 

profit, or to increase tax revenue, tax base, employment, or general 

economic health.’’ 12

The definition contains a number of exceptions which create a 

number of ambiguities and would seem to leave open the possibility 

for perverse results. 

For example, eminent domain is permitted if it conveys the private property to a private 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. * * *’’ 13

A public facility, which is privately owned, open to the public as of 

right would appear to include a sports stadium or a shopping center. They are at least as open to the public as a railroad, which provides a seat as of right for the price of a ticket. Indeed, unlike the 

railroad or the stadium, a shopping center is open to the public 

without the need to purchase a ticket.14

There appears to have been a concern that private for-profit uses 

might fall within the bill’s prohibition because they are not necessarily a ‘‘common carrier, that makes the property available for 

use by the general public as of right.’’ Mr. Goodlatte offered an 

amendment, accepted by a voice vote, that moved ‘‘public utility’’

from the common carrier clause of paragraph (1)(A), and creating 

a new paragraph (1)(F) allowing the ‘‘taking of private property for 

use by a public utility’’ thus removing any requirement that a public utility behave in its traditional role as a common carrier in 

order to benefit from the extraordinary governmental power of eminent domain.15

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16 § 8(1)(B). 17 § 8(1)(C). 18Letter to Hon. F. James Sensenbrenner & Hon. John Conyers, Jr., from Donald J. Borut, 

Executive Director, National League of Cities (Oct. 30, 2005). 

The term ‘‘blight’’ is no longer used to describe a permitted use, 

but the bill does refer to ‘‘removing harmful uses of land provided 

such uses constitute an immediate threat to public health and safety.’’ 16 It is our hope that this language will prove sufficiently narrow to eliminate the past abuses of eminent domain under the pretext of removing ‘‘blight.’’ We remain concerned, however, that the 

new language could be abused in the same manner as the ‘‘blight’’

exception. We would hope that further clarification on this important point would be possible. 

Public developments are also precluded if they lease property to 

a private person ‘‘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.’’ 17 This would seem to prohibit 

the use of eminent domain to build such projects as New York’s 

World Trade Center, which included public offices, transportation 

facilities, public open space, leased office space, and leased retail 

space. If a public project were later privatized, the former property 

owner would have a seven-year window to bring an action against 

the jurisdiction that would result in the loss of all economic development funds for two years. 

For these reasons, we believe that, however well intentioned, the 

proposed legislation would fail to protect vulnerable communities, 

allow projects of the type many proponents seek to prohibit, and 

hinder many projects normally considered to be in the public interest. Worse still, it would create financial chaos for cities, states, 

and the bond and insurance markets. 

This careless response to the Kelso decision is also unnecessary. 

States and localities are more than able to respond to this decision. 

To the extent that they fail to do so, the Congress would retain the 

ability and the authority to deal more narrowly with any problems 

that may arise. As the National League of Cities has reported, 

The Kelo Court, affirming federalism, did not preclude 

‘any state from placing further restrictions on its exercise 

of the Takings power.’ Approximately 30 states are already 

reviewing or planning to review their eminent domain 

laws during upcoming legislative sessions, with the majority focused on just compensation and comprehensive planning process modifications. Since June 2005, Alabama, 

Texas, and Delaware enacted laws that tighten the application of eminent domain power in each state.18

Land use planning is primarily a state and local function. For 

Congress to step in so precipitously, while states are still acting, 

violates fundamental principles of federalism. Were the states moving to take full advantage of the broadest possible reading of the 

Kelo decision, Congress might well have reason to move with equal 

dispatch. Just the opposite is true. States and localities are responding to the same concerns behind this legislation. They are, 

however, better able to respond to local needs and local realities. 

86 

19 Representative Watt offered an amendment that would have left only the ‘‘Sense of the Congress’’ language of section 7, reflecting the view that Congress should state the principle that 

the power of eminent domain must be exercised properly and with restraint, but that congressional control over the minute details of these decisions goes too far. 

Congress is still free to respond to actual, rather than hypothetical, 

problems should the need arise.19

We urge our colleagues to move with great care. The uncertainty 

with which the Judiciary Committee proceeded during its recent 

markup demonstrates just how chaotic a congressional effort to act 

as a national zoning board would likely be. At the very least, we 

would urge greater caution. 

JERROLD NADLER. ROBERT SCOTT. 

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