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HEARING ON THE ‘‘PRIVATE PROPERTY RIGHTS 

PROTECTION ACT OF 2013’’ 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

APRIL 18, 2013 

Serial No. 113–17 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

KEITH ROTHFUS, Pennsylvania 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

TRENT FRANKS, Arizona, Chairman 

JIM JORDAN, Ohio, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

RON DeSANTIS, Florida 

KEITH ROTHFUS, Pennsylvania 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

DAVID LACHMANN, Minority Staff Director 
(III) 

C O N T E N T S 

APRIL 18, 2013 

Page 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution and Civil 

Justice ................................................................................................................... 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution 

and Civil Justice ................................................................................................... 20 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 22 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 23 

WITNESSES 

Susette Kelo, New London, CT 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 29 

David T. Beito, Professor, University of Alabama 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 34 

Julia Trigg Crawford, Farm Manager, Sumner, TX 

Oral Testimony ..................................................................................................... 39 

Prepared Statement ............................................................................................. 41 

Scott Bullock, Senior Attorney, Institute for Justice 

Oral Testimony ..................................................................................................... 43 

Prepared Statement ............................................................................................. 46 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Discussion Draft of H.R. lll, the ‘‘Private Property Rights Protection 

Act of 2013’’ .......................................................................................................... 3 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 25 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of Andrew W. Schwartz, submitted by the Honorable 

Jerrold Nadler, a Representative in Congress from the State of New York, 

and Ranking Member, Subcommittee on the Constitution and Civil Justice . 64 

H.R. 1944, the ‘‘Private Property Rights Protection Act of 2013’’ ....................... 78 

(1) 

HEARING ON THE ‘‘PRIVATE PROPERTY 

RIGHTS PROTECTION ACT OF 2013’’ 

THURSDAY, APRIL 18, 2013 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:09 a.m., in room 

2141, Rayburn Office Building, the Honorable Trent Franks, 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Goodlatte, Chabot, Gohmert, 

DeSantis, Nadler, Conyers, and Scott. 

Staff present: (Majority) Zach Somers, Counsel; Sarah Vance, 

Clerk; (Minority) David Lachmann, Subcommittee Staff Director; 

Veronica Eligan, Professional Staff Member. 

Mr. FRANKS. The Subcommittee on the Constitution and Civil 

Justice will come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Committee at any time. 

We have called this hearing to examine the continuing need for 

Congress to pass the Private Property Rights Protection Act. This 

legislation is needed to blunt the negative impact of the Supreme 

Court’s decision in Kelo v. City of New London, which permits the 

use of eminent domain to take property from homeowners and 

small businesses and transfer it to others for private economic development. 

In Justice O’Connor’s words, the Kelo decision pronounced that, 

‘‘Under the banner of economic development, all private property is 

now vulnerable to be taken and transferred to another private 

owner so long as it might be upgraded. Nothing is to prevent a 

state from replacing any Motel 6 with a Ritz Carlton, any home 

with a shopping center, or any farm with a factory.’’ 

The Kelo decision was resoundingly criticized from across all 

quarters. In 2005, the House voted to express grave disapproval of 

the decision and overwhelmingly passed the Private Property 

Rights Protection Act, with 376 Members voting in favor and only 

38 Members voting against. 

In the last Congress, the House once again passed this legislation, this time by voice vote. Unfortunately, the bill has not been 

taken up by the Senate. 
2 

The Private Property Rights Protection Act prohibits states and 

localities that receive Federal economic development funds from 

using eminent domain to take private property for economic development purposes. States and localities that use eminent domain for 

private economic development are ineligible to receive Federal economic development funds for 2 fiscal years. 

Every day, local governments in search of more lucrative tax 

bases take property from homeowners, small businesses, churches 

and farmers and give it to large corporations for private redevelopment. Federal law currently allows Federal funds to be used to 

support such condemnations, encouraging this abuse nationwide. 

This bill will restore Americans’ faith in their ability to build, own, 

and keep their property without fear that the government will take 

it and give it to someone else. It will tell commercial developers 

that they should seek to obtain property through private negotiation, not by government force. 

Too many Americans have lost homes and small businesses to 

eminent domain abuse, forced to watch as private developers replace them with luxury condominiums and other ‘‘upscale’’ uses. 

Family farms have been wiped out by eminent domain to make 

way for shopping centers and big-box stores. Churches, generally 

entitled to tax-exempt status, are often seized through eminent domain to be replaced by more lucrative private development. 

Unfortunately, it is usually the most vulnerable who suffer from 

economic development takings. As Justice Thomas observed in his 

dissenting opinion in Kelo, ‘‘Extending the concept of public purpose to encompass any economically beneficial goal guarantees that 

these losses will fall disproportionately on poor communities. Those 

communities are not only systematically less likely to put their 

lands to the highest and best social use but are also the least politically powerful. The deferential standard this Court has adopted for 

the public use clause encourages the citizens with disproportionate 

influence and power in the political process, including large corporations and development firms, to victimize the weak.’’ 

I am pleased this week that Mr. Sensenbrenner and Ms. Waters 

introduced again the Private Property Rights Protection Act. We 

must restore the private property rights protections that were 

erased from the Constitution by the Kelo decision. John Adams 

wrote over 200 years ago that, ‘‘property must be secured or liberty 

cannot exist.’’ As long as the specter of condemnation hangs over 

all property, our liberty is threatened. 

I look forward to the witnesses’ testimony, and now I recognize 

the Ranking Member, Mr. Nadler, for 5 minutes for his opening 

statement. 

[Discussion Draft of H.R. lll, the ‘‘Private Property Rights 

Protection Act of 2013’’ follows.] 
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Mr. NADLER. Thank you, Mr. Chairman. Before we begin, I want 

to thank you for moving this hearing back an hour to accommodate 

a conflict the Democratic Members had due to our regularly scheduled meeting. 

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

officials, and Congress cries foul. The power of eminent domain is 

an extraordinary one and should be used rarely and with great 

care. All too often, it has been abused for private gain or to benefit 

one community at the expense of another. It is, however, an important tool, making possible transportation networks, irrigation 

projects, and other public purposes. To some extent, all of these 

projects are ‘‘economic development projects.’’ Members of Congress 

are always trying to get these projects for our districts, and certainly the economic benefits to our constituents is always a consideration. 

Has this bill drawn the appropriate line between permissible and 

impermissible uses of eminent domain? I think this is one of the 

questions we will need to consider. We all know the easy cases. As 

the majority in Kelo said, ‘‘The city would no doubt be forbidden 

from taking petitioner’s land for the purpose of conferring a private 

benefit on a particular private party, nor would the city be allowed 

to take property under the mere pretext of a public purpose when 

its actual purpose was to bestow a private benefit.’’ But which 

projects are appropriate and which are not can sometimes be a difficult call. 

Historically, eminent domain has been abused and has destroyed 

communities for projects having nothing to do with economic development, at least as defined in this bill. For example, highways 

have cut through neighborhoods, destroying them. Some of these 

communities are in my district that have yet to recover from the 

wrecker’s ball. Yet that would still be permitted by this bill. Other 

projects might have a genuine public purpose and yet would be prohibited. The rhyme or reason of this bill is not clear. 

One of our witnesses today will discuss the use of eminent domain to facilitate a project that many of my Republican colleagues 

want to see built and that this bill would permit. I think we owe 

it to the many property owners who have been subject to eminent 

domain by this foreign corporation to consider whether that use of 

the takings power is appropriate or whether, as many have argued, 

it is simply a case of the rich and powerful using governmental 

power to dispossess those without power. 

I continue to believe that this bill is the wrong approach to a 

very serious issue. The bill would permit many of the abuses and 

injustices of the past to continue by excluding from its coverage 

many of the projects that cause those abuses, including pipelines, 

transmission lines and railroads. It would allow the Keystone Pipeline to cut through the heartland of America and condemn property 

all along its route. It would allow highways to cut through communities. It would allow all the other public projects that have historically fallen most heavily on the poor and powerless. As Hillary 

Shelton at the NAACP has previously testified, these projects can 

be just as burdensome as projects that include private development. 
21 

This bill allows the use of eminent domain to give property to a 

private party ‘‘such as a common carrier that makes the property 

available for use by the general public as of right.’’ Does that mean, 

for example, a stadium? 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, but that would apparently be permitted by this 

bill. Is it a shopping center? You don’t even need a ticket. 

The World Trade Center could not have been built under this 

law. It was publicly owned but was predominantly leased for office 

space and retail use. Neither could Lincoln Center have been built. 

Affordable housing like the Hope VI or the Nehemiah program, a 

faith-based affordable housing program in Brooklyn, could never 

have gone forward. So public housing, apparently, completely constructed by the government, public housing projects are okay, but 

public-private partnerships for affordable housing are not okay. 

Since the Kelo decision, there have been new developments that 

call into question whether Congress should even act at this point. 

In response to the Kelo decision, states have moved aggressively to 

reconsider and amend their own eminent domain laws. More than 

40 states have acted to narrow their eminent domain laws. States 

have carefully considered the implications of this decision and the 

needs of their citizens. I question whether Congress should now 

come charging in and presume to sit as a national zoning board, 

aggregating to our national government the right to decide which 

states have gotten the right balance and deciding which projects 

are or are not appropriate. 

The lawsuits authorized by this bill and the vagueness of the 

bill’s definitions would cast a cloud over legitimate projects. A property owner or a tenant would have 7 years after the condemnation 

before the litigation and appeals need even begin. Did the trial lawyers write this bill? 

Most importantly, even if my colleagues believe that Congress 

needs to act in response to Kelo, the penalties in this bill are so 

draconian and misguided that even a government that never took 

a prohibited action would be hobbled financially by it. The local 

government would risk all of its economic development funding for 

2 years even for unrelated projects and face bankruptcy if it 

guessed wrong about a given project. Even if a jurisdiction did not 

use eminent domain at all, the cloud this bill would cast over the 

possibility of some future taking, or that property taking for a permitted purpose could not be used because the funding dried up, 

would be enough to destroy their ability to float bonds at any time. 

And what does this bill give to an aggrieved tenant or homeowner who was aggrieved by the misuse of eminent domain? What 

does the bill give them? Nothing. They cannot sue to stop the taking. They cannot get any damages other than the compensation 

they got at the time of the taking. All they can get is the psychic 

satisfaction that they get from bankrupting their community. 

Mr. Chairman, this legislation goes well beyond dealing with a 

hypothetical taking of a Motel 6 to build a Ritz Carlton, which despite dire warnings at the time of the Kelo decision was simply not 

what the Court authorized. This bill threatens communities with 

bankruptcy without necessarily protecting the most vulnerable populations. It comes after years of state action in which states have 
22 

decided which approach would satisfy their concerns and protect 

their citizens the best. 

I think this bill is unnecessary, and if it is to pass, it should certainly be changed as to the remedy so that the remedy deals with 

the problem and doesn’t bankrupt communities that never even 

availed themselves of eminent domain. 

I want to join you in welcoming our witnesses, and I yield back 

the balance of my time. 

Mr. FRANKS. And I thank the gentleman, and I now yield to the 

Chairman of the Committee, Mr. Goodlatte from Virginia. 

Mr. GOODLATTE. Well, thank you, Chairman Franks. I very much 

appreciate your holding this hearing on a very important subject. 

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 by enshrining property rights protections throughout 

the Constitution, including in the Fifth Amendment, which provides that private property shall not be taken for public use without just compensation. 

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 owner just compensation. However, the Supreme Court’s 5–4 decision in Kelo v. 

City of New London was a step in the opposite direction. This controversial ruling expanded 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. 

The Kelo decision even permits the government to take property 

from one private individual and give it to another private entity. 

As the dissenting justices observed, by defining public use so expansively, the result of the Kelo decision is, ‘‘effectively to delete 

the words ‘for public use’ from the takings clause of the Fifth 

Amendment. The specter of condemnation hangs over property. 

The government now has license to transfer property from those 

with few resources to those with more. The founders cannot have 

intended this perverse result.’’ 

In the wake of this 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 make way for shopping malls and 

other developments. For these reasons, it is important that Congress finally pass the Private Property Rights Protection Act. 

I am pleased that this legislation incorporates many provisions 

from legislation I helped introduce in the 109th Congress, the 

STOPP act. Specifically, the Private Property Rights Protection Act 

would prohibit all Federal economic development funds for a period 

of 2 years for any state and local government that uses economic 

development as a justification for taking property from one person 

and giving to another private entity. 

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

owner. 
23 

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

provisions of the bill. 

The bill also includes a carefully crafted definition of economic 

development that protects traditional uses of eminent domain such 

as taking land for public uses like roads, while prohibiting abuses 

of eminent domain powers. 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 incentives to ensure that these abuses do not occur in the future. 

This bill is very bipartisan in nature, and the adage that one’s 

home is one’s castle applies to people across the economic spectrum. 

I look forward to the witnesses’ testimony, and I am particularly 

looking forward to the testimony of Mrs. Kelo. I thank you very 

much for coming to the Committee. 

It is my understanding this is the first time that you have testified before the Judiciary Committee, and I want to say to you that 

as a woman who had the courage to take on the bureaucracy and 

take a case all the way to the United States Supreme Court, even 

though it resulted in an unfortunate decision by the Court, has 

helped to highlight this plight that many property owners face. The 

gentleman from New York is correct, 40 states have changed their 

laws as a result of your good work. So I thank you very much for 

that, and I will tell you that the decision that came down that 

many of us have protested was at the time the most unpopular Supreme Court decision in the history of polling when people were 

surveyed about that. 

I agree very much with Congresswoman Maxine Waters, who 

represents one of the poorest congressional districts in an urban 

area in the entire country and who strongly supports this measure 

because she knows two things: one, that a person’s property is their 

castle, no matter what their background is; and she knows that so 

often it is people of lower incomes who are the first targets of the 

government saying I am going to take your property for economic 

development purposes because I think we collectively as a government can do better with your property than you can yourself. That 

is wrong. In my opinion, it is a clear violation of the United States 

Constitution, and anything this Congress can do to protect it will 

be wonderful. 

But nothing we do will ever match what you have already done. 

So thank you and God bless you. 

Mr. FRANKS. And I thank the gentleman. 

I would now yield to the Ranking Member of the Committee, Mr. 

Conyers from Michigan. 

Mr. CONYERS. Thank you, Mr. Chairman. I rise as one who has 

changed my opinion of this measure. I was going to put my statement in the record, and my colleague from Virginia, Mr. Scott, reminded me that I might better, more ably explain why I have 

changed my position. 

I don’t like the Kelo decision of the Supreme Court, and neither 

do I like the bill that was put in for this and that will be coming 

in very shortly. 
24 

Mr. Scott also reminds me that downtown Detroit was built off 

the whole idea that eminent domain could pose a problem. So I am 

happy to make a few comments about the decision and the bill 

itself. 

Now, in the wake of the Kelo decision, the concern has arisen 

that state and municipalities can use this decision to expand their 

power of eminent domain, whether for the benefit of private parties 

or public projects, to the detriment of those who are the least powerful—the poor, the elderly, and the communities of color. While I 

believe that eminent domain can and has been abused, particularly 

with respect to those lacking this economic and/or political power, 

I have come to conclude that for the time being we should allow 

the states to craft responses rather than impose an awkward onesize-fits-all Federal legislative response. 

It is important to note that in Kelo, the Court acknowledged that 

the state courts may interpret their own eminent domain powers 

in a manner that is more protective of property rights. I am encouraged that no less than 43 states, as has been mentioned, have 

followed that advice and taken steps to restrict their own powers 

of eminent domain to guard against abuse. 

In my own State of Michigan, voters adopted an amendment to 

amend the Michigan Constitution to preclude takings for economic 

development or tax enhancement, among a number of other protections for property owners and tenants. 

Given the fact that our system of federalism appears to be working and that the states are in consensus on the need to prevent 

abuse, I don’t think that we need Federal intervention at this time. 

The bill’s enforcement provisions are very troubling. For example, a jurisdiction found in violation of the measure would be 

stripped of all Federal economic development funds for 2 years, 

which could possibly bankrupt that jurisdiction. Despite that draconian penalty, the actual property owner would get nothing. The bill 

does not even give the property owner the right to sue to stop the 

taking in the first place. A suit can only be brought after the property is taken. 

The Supreme Court has long held that when Congress attaches 

conditions to a state’s acceptance of Federal funds, the conditions 

must be set out unambiguously. The bill, however, fails to satisfy 

this requirement with respect to its definition of economic development funds, which therefore could subject a jurisdiction to its punitive provisions. 

For instance, the Government Accountability Office, GAO, testified in the last Congress about the difficulty of determining what 

qualifies as an ‘‘economic development program.’’ GAO has also 

warned that the loss of Federal funding to a state and local government could encompass highway trust funds, community development block grants and other Department of Housing and Urban 

Development programs intended to assist vulnerable communities. 

Of course, the sequester doesn’t help much either. 

Mr. Chairman, I will stop at this point, put the remainder of my 

statement in the record, and thank the Chairman for the additional 

time that he has given me. 

[The prepared statement of Mr. Conyers follows:] 
25 

1 Arlington Cent. School Dist. Bd. Of educ. V. Murphy, 548 U.S. 291, 296 (2006) (quoting 

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

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

In the wake of the Supreme Court’s decision in Kelo v. City of New London, I have 

been concerned that states and municipalities could use this decision to expand 

their power of eminent domain—whether for the benefit of private parties or for 

public projects—to the detriment of those who are the least powerful, namely, the 

poor, elderly, and communities of color. 

While I believe the power of eminent domain can and has been abused—particularly with respect to those lacking economic or political power—I have come to conclude that for the time being we should allow the states to craft responses, rather 

than impose and awkward and one size fits all federal legislative response. I have 

reached this conclusion for several reasons. 

First and foremost, it is important to note that in Kelo, the Supreme Court acknowledged that state courts may interpret their own eminent domain powers in a 

manner that is more protective of property rights. 

I am therefore encouraged that no less than 43 states have followed that advice 

and taken steps to restrict their own powers of eminent domain to guard against 

abuse. 

For example, in 2006 Michigan voters adopted an amendment to Michigan’s Constitution to preclude takings for economic development or tax enhancement, among 

a number of other protections for property owners and tenants. 

Given the fact that our system of federalism appears to be working and that the 

states are in consensus on the need to prevent abuse, I do not believe that federal 

intervention is necessary or appropriate at this time. 

Second, the bill’s enforcement provisions are very troubling. For example, a jurisdiction found in violation of the measure would be stripped of all federal economic 

development funds for two years, which could possibly bankrupt that jurisdiction. 

Despite that draconian penalty, the actual property owner would get nothing. The 

bill does not even give the property owner the right to sue to stop the taking in 

the first place. A suit can only be brought after the property is taken. 

The Supreme Court has long held that ‘‘when Congress attaches conditions to a 

State’s acceptance of Federal funds, the conditions must be set out ‘unambiguously.’ ’’ 1

The bill, however, fails to satisfy this requirement with respect to its definition 

of ‘‘economic development funds,’’ which therefore could subject a jurisdiction to its 

punitive provisions. 

For instance, the Government Accountability Office testified in the last Congress 

about the difficulty of determining what qualifies as an ‘‘economic development program.’’ 

GAO also warned that the loss of federal funding to a state and local government 

could encompass Highway Trust Funds, Community Development Block Grants, and 

other Department of Housing and Urban Development programs intended to assist 

vulnerable communities. 

The recent sequester has further diminished the already shrinking federal funds 

that assist state and local governments. 

Given all of the uncertainty that sequestration has cast over the viability of states 

to stimulate job creation, provide health care, and build infrastructure, the bill’s punitive provisions could prove devastating. 

Finally, against this backdrop, we need to remember that eminent domain abuse 

has a long and shameful history of disproportionately impacting minority communities. 

Inner city neighborhoods that lacked institutional and political power were often 

designated as blighted areas slated for redevelopment through urban renewal programs. Properties were condemned and land was turned over to private parties. 

In Detroit Michigan, neighborhoods such as Poletown have experienced firsthand 

how eminent domain can destroy neighborhoods, presenting issues similar to those 

in the Kelo case. 

This underscores why it is important that we continue to monitor the facts on the 

ground and hold hearings like we are today. If the states do not continue to act to 

protect our citizens, Congress should remain ready, willing and able to do so. 

Thank you. 
26 

Mr. FRANKS. I thank the gentleman, and without objection, other 

Members’ opening statements will be made part of the record. 

Let me now introduce our witnesses. I welcome you all here 

today, along with those welcomes you have already received. 

Susette Kelo purchased and lovingly restored her dream home in 

1997, a little pink house with views of the water in New London, 

Connecticut. Tragically, the City of New London turned her dream 

home into a nightmare. Ms. Kelo was the lead plaintiff in the landmark Supreme Court case Kelo v. City of New London. In that case, 

the Court ruled that the city could take her home and give it to 

a private developer for economic development purposes. Sadly, Ms. 

Kelo’s story is all too familiar to many other Americans trying to 

save their private property from governmental seizure. 

David—is it Beito, sir? David Beito is an historian and professor 

of history at the University of Alabama. His research focuses on 

civil rights history. Dr. Beito is the author of three books and has 

also written numerous scholarly articles. In 2007, Dr. Beito was appointed to the Chair of the Alabama State Advisory Committee of 

the U.S. Commission on Civil Rights. As chair, he has addressed 

eminent domain abuse as a civil rights issue. 

Julia Trigg Crawford manages a 600-acre farm in Northeast 

Texas that has been in her family since 1948. Ms. Crawford is 

fighting the use of eminent domain to take a portion of her family’s 

farm as part of the Keystone Pipeline project. Her case is currently 

before the Texas 6th Circuit Court of Appeals. Ms. Crawford is 

challenging TransCanada’s authority under Texas law to exercise 

the power of eminent domain. 

Scott Bullock is a senior attorney at the Institute for Justice, a 

non-profit public-interest firm that represents people whose rights 

are being violated by the government. Since his time with the Institute for Justice, Mr. Bullock has brought numerous cases in 

which homes or small businesses have been seized by the government through the power of eminent domain and transferred to another private party. In 2005, he argued Kelo v. City of New London 

before the United States Supreme Court. 

Each of the witness’ written statements will be entered into the 

record in its entirety, so I would ask that each witness summarize 

his or her testimony in 5 minutes or less. To help you stay within 

that time, there is a timing light in front of you. The light will 

switch from green to yellow, indicating that you have 1 minute to 

conclude your testimony. When the light turns red, it indicates that 

the witness’ 5 minutes have expired. 

Before I recognize the witnesses, it is the tradition of the Subcommittee that they be sworn. So if you would please stand to be 

sworn. 

[Witnesses sworn.] 

Mr. FRANKS. You may be seated. 

Let the record reflect that the witnesses answered in the affirmative. 

I now recognize our first witness. Please turn on your microphone, Ms. Kelo, before you speak. Thank you. 

TESTIMONY OF SUSETTE KELO, NEW LONDON, CT 

Ms. KELO. I want to thank Representative Waters—— 
27 

Mr. FRANKS. Ms. Kelo, I am not sure that went on. Did the light 

turn on? Maybe pull it a little bit closer to you. 

Ms. KELO. I want to thank Representative Waters and Sensenbrenner for their sponsorship of the Private Property Rights Protection Act and for their support of property owners and tenants nationwide. My name is Susette Kelo, and I am the Kelo in Kelo v. 

the City of New London, the case in which the United States Supreme Court ruled that private property, including my home, could 

be taken by another private party who promises to create more jobs 

and taxes with the land. 

While we homeowners of New London may have lost that battle, 

we are winning the war. The decision sparked a nationwide revolt 

against eminent domain abuse and demonstrated that virtually the 

entire country, regardless of background or political party, is 

against this practice. 

But Congress has so far refused to join the rest of the Nation in 

Kelo backlash and continues to fund eminent domain abuse. 

My 9-year battle began in 1997 when I searched all over New 

London for a house and finally found the perfect Victorian cottage 

with beautiful views of the water. I knew when I first entered it 

that I was meant to be there. My husband and I spent every spare 

moment fixing it up and creating the kind of home we had always 

dreamed of, and I painted it salmon pink, my favorite color. 

When I first bought the house, it had been run down. When finished, we made it beautiful. But the New London Development 

Corporation decided it wanted to give my property to a private developer, so it told my neighbors and me we had to sell or be condemned. But we all loved our homes and neighborhood and we 

were not prepared to give in. Nine years later, the United States 

Supreme Court ruled against us. 

My story is not unique. In just the year after the decision, almost 

6,000 homes and businesses were threatened or condemned for private development. Just as my neighbors and I didn’t want to sell 

and didn’t ask to be condemned, neither did the hard-working, taxpaying Americans fighting to keep their homes and businesses. 

Congress must stop funding this abuse of power. Our Federal tax 

dollars shouldn’t be used to take away our homes and businesses 

so that developers can build shopping malls and high-priced condominiums. For the project that was supposed to replace my New 

London home, New London received $2 million in funds from the 

Federal Economic Development Administration. If this bill had 

been in place, it could have helped prevent New London from seizing my little pink cottage, which my husband and I spent years 

making into the kind of home we could be proud of. 

And all of this was for nothing. After spending close to $80 million in taxpayer money, there has been no construction whatsoever 

in the neighborhood. To this day, it remains a barren field, home 

to weeds and feral cats. In 2009, Pfizer, the linchpin of the plan, 

announced that it was closing its research and development headquarters and leaving New London for good. 

My battle started as a way for me to save my home, but it has 

rightfully grown into something much larger, the fight to restore 

the American Dream and sacredness and security of each one of 

our homes. 
28 

Property owners across the Nation are now up in arms and 

united in the fight to end eminent domain abuse. I thank Representative Waters and Sensenbrenner for being on the front lines, 

and I ask Congress to join them by passing the Private Property 

Rights Protection Act. Thank you. 

[The prepared statement of Ms. Kelo follows:] 
29 
30 
31 

Mr. FRANKS. Mrs. Kelo, thank you very much. 

Dr. Beito? 

TESTIMONY OF DAVID T. BEITO, PROFESSOR, 

UNIVERSITY OF ALABAMA 

Mr. BEITO. Thank you, sir, for this opportunity to come here 

today and speak on this issue. My focus is going to be on how expansive eminent domain to benefit private interests as a consequence of subsidizing private development has posed and con-
32 

tinues to pose a threat to the civil rights of minorities and the poor. 

In my view, the Private Property Rights Protection Act of 2013 provides the best available means to provide some measure of corrective relief. 

In the history of the United States during the last 100 years, no 

group has suffered more from eminent domain abuse than AfricanAmericans. According to one typical study, two-thirds of those displaced by urban renewal, often via eminent domain, were nonWhite. Another study found that four-fifths of these paid substantially higher rents than they had before. Commenting on the fact 

that government-sponsored urban renewal destroyed far more 

housing units than it ever replaced, author James Baldwin charged 

that ‘‘urban renewal means moving the Negroes out. It means 

Negro removal. The Federal Government is an accomplice.’’ 

The pattern of abuse did not end in the 1960’s and 1970’s. It has 

often continued to the present. In San Jose, California, for example, 95 percent of the businesses in recent years, destroyed by eminent domain, were minority owned, even though they constituted 

only 30 percent of the businesses in the city. 

In 2005, this long record of eminent domain overreach prompted 

several important minority organizations, including the NAACP 

and the Southern Christian Leadership Conference, to jointly file 

an amicus brief for the plaintiffs in the Kelo case. After reviewing 

the historical background, this brief warned that enabling local 

governments to take ‘‘property simply by asserting that they can 

put the property to a higher use will systematically sanction transfers from those with less resources to those with more. . . . Even 

absent illicit motives, eminent domain power has affected and will 

disproportionately affect racial and ethnic minorities, the elderly 

and the economically disadvantaged. Well-cared-for properties 

owned by minority and elderly residents have repeatedly been 

taken so that private enterprise could construct superstores, casinos, hotels, and office parks.’’ 

It might be asked why Congress needs to step in now. Can’t the 

states be trusted to prevent the abuse of eminent domain? Unfortunately, the 8-year aftermath of Kelo shows that they all too often 

will not, especially when Federal money is potentially at stake. My 

own state of Alabama is a case in point. In the wake of national 

outrage over Kelo, it was one of the first to enact corrective reform 

which greatly limited eminent domain for private purposes. Only 

last month, however, Alabama reversed course and gutted a key 

element of this reform. 

Now, while some who have voted for it have since stated that 

they did not intend to undermine the earlier reform, and even acknowledged the need to close inadvertent loopholes in the new 

law’s wording, they have made no apparent effort to do so. 

If the states will not act to defend the property rights of the poor 

and vulnerable, Congress must. As generations of civil rights champions have stressed, the protection of the right to acquire and hold 

property is critical to the economic progress of the poor and oppressed. In 1849, for example, Frederick Douglass declared that the 

chief end of civil government is ‘‘to protect the weak against the 

strong, the oppressed against the oppressor, the few against the 
33 

many, and to secure the humblest subject in the full possession of 

his rights of person and of property.’’ 

During a time of recession, it is all the more important to heed 

Douglass’ timeless words. In this same spirit, it is also past due to 

start viewing the existing property owners in lower-income neighborhoods as assets to the community. The passage of the Private 

Property Rights Protection Act of 2013 will greatly contribute to 

this goal by fostering an environment which will treat low-income 

property owners and entrepreneurs as valuable urban pioneers 

rather than as obstacles to be pushed out of the way if their rights 

conflict with some broader governmental or private agenda. 

Thank you. 

[The prepared statement of Mr. Beito follows:] 
34 
35 
36 
37 
38 
39 

Mr. FRANKS. Thank you, sir. 

Ms. Crawford, you are recognized now for 5 minutes. 

TESTIMONY OF JULIA TRIGG CRAWFORD, 

FARM MANAGER, SUMNER, TX 

Ms. CRAWFORD. Good morning. My name is Julia Trigg Crawford, 

and I manage the Texas farm my grandfather bought in 1948. Our 

land was taken by TransCanada for the Keystone project, so I absolutely support measures to limit eminent domain. But I strongly 

oppose an exemption for TransCanada, Keystone XL, and any other 

entity that cannot provide proof their projects are for the public 

benefit. 

TransCanada abused the right of eminent domain in taking our 

land as it was the elbow they so desperately needed to avoid nearby wetlands, waterways and pipelines. We never wanted them on 

our place to start with, and told them so in 2008. We asked them 

to find another route through a willing neighbor, just a little further west. They refused. 

We told them we wanted to protect the 1,000-year-old Caddo Indian relics on our farm. TransCanada’s archaeologists recently 

found 145 artifacts within the proposed easement, some as large as 

silver dollars, yet their report discounts their merit. How curious 

that TransCanada and the Texas Historical Commission concur 

that my entire 30-acre pasture qualifies for National Registry of 

Historic Places except for the one sliver of land that TransCanada 

must have to connect the two sections of pipe already built. 

We told them we feared for Bois d’Arc Creek. Water is a farmer’s 

lifeblood, and pipelines leak, and we didn’t want to be a guinea pig 

for how to clean up tar sands spills in Texas waters. TransCanada 

said they are coming anyway. 

But more than anything else, we do not believe a foreign corporation transporting a product produced outside of Texas meets our 

state’s qualifications of common carrier. No common carrier, no 

eminent domain. But TransCanada moved ahead anyway, exploiting Texas’ flawed permitting process, and starts construction on my 

land tomorrow. 

But we are pushing back. The 2011 Texas Supreme Court ruling 

in Denbury Green said that private property rights are too precious 

to be taken by simply checking a box on a form. They also said, 

when challenged by a landowner, the pipeline has the burden to 

present reasonable proof it meets the requirements of a common 

carrier. So we asked for the proof. TransCanada hid behind the 

skirts of the Texas Railroad Commission, an entity that fully admits they rubberstamp every application they receive. 

So we asked again for their tariff schedule. TransCanada said 

they could not have that tariff schedule until about the time product started flowing, meaning they could not produce the proof, they 

could take my land, until after they took my land, construction of 

the pipeline and tar sands were about to flow. 

These examples of abuse are why TransCanada and the Keystone XL must not be granted an extension, and it is why I cannot 

support this bill in its entirety. If we allow these exemptions, we 

will be setting a dangerous precedent, leaving the door open for 

further misuse of our legal system and abuse of landowners. The 
40 

same system that enabled a judge to rule against us with a 15- 

word ruling sent from his iPhone would enable TransCanada and 

other pipeline companies to use this incredible legal and psychological leverage of eminent domain to continue stealing property 

from American citizens. 

We have appealed to the Sixth Circuit, and if our funds hold out 

we will take it to the Texas Supreme Court. My family and I are 

standing tall for what we believe. 

I have not seen one shred of documentation that proves that one 

single drop of the products in Keystone’s pipeline will wind up in 

my gas tank or yours, for that matter, yet we are supposed to relinquish our family’s tradition and the cultural heritage of the Caddo 

and endanger my land and water just because TransCanada says, 

without proof, that their pipeline is for the public good. How can 

this pipeline be for the public good when so much information 

about it is not even in the public record? Diluted bitumen, tar 

sands, whatever you want to call it, is a product we should fully 

understand before we start pumping it through waterways. TransCanada has called this product proprietary, refusing to provide specifics. How can we ensure the safety of a substance when we don’t 

even know its ingredients? 

Pipeline companies do not deserve a free ride, especially when 

they can’t clean up their own messes. Look at Enbridge in Michigan or Exxon in Arkansas, a spill I went to see for myself. The 

thought of that kind of destruction on my farm in my creek is 

frightening. America already subsidizes the oil industry at a monumental disproportion to other industries. Why should we further 

underwrite pipelines with our safety, our security, and our dignity? 

This bill, with its exemption of TransCanada and the Keystone 

XL, turns a blind eye to the most flagrant abuser of eminent domain today. Hold everyone to the same standards and let those 

who manipulate the system for their own good suffer the consequences. TransCanada stole land that has been in my family for 

six decades for a project that will line their pockets. To allow them 

to walk away from past abuses without penalty is unforgivable. 

I will continue to fight these injustices because life as we know 

it depends on it, and I am not alone. Thank you. 

[The prepared statement of Ms. Crawford follows:] 
41 

Prepared Statement of Julia Trigg Crawford, 

Farm Manager, Summer Texas 
42 
43 

Mr. FRANKS. Thank you, Ms. Crawford. 

Now, Mr. Bullock, I recognize you, sir. 

TESTIMONY OF SCOTT BULLOCK, SENIOR ATTORNEY, 

INSTITUTE FOR JUSTICE 

Mr. BULLOCK. Thank you, Mr. Chairman. Thank you for the opportunity to testify regarding eminent domain abuse, an important 

issue that has received significant national attention as the result 
44 

of, as one of the Members just recently pointed out, one of the nearly universally despised Supreme Court decisions, certainly in recent memory. 

This Committee is to be commended for responding to the American people by continuing to examine this misuse of government 

power, and it is our hope that the Congress passes the Private 

Property Rights Protection Act. 

I did have the great honor of representing Susette Kelo and the 

other homeowners in New London and many other home and small 

business owners throughout the country that have been fighting 

this combination of public power and private gain. 

The Kelo case signaled that the U.S. Constitution provides very 

little protection for private property rights of Americans faced with 

eminent domain abuse. Indeed, the Court ruled that is it is acceptable to use the power of eminent domain where there is a mere 

possibility that something could make more money than the homes 

or small businesses that currently occupy the land. The Supreme 

Court has so far refused to reconsider the Kelo decision, just this 

week turning down another case that would have permitted the 

Court to reconsider its misguided ruling in Kelo. Because this threat has been noted by several people who have 

testified and by Members of this Subcommittee, there has been 

considerable public outcry against the closely divided Supreme 

Court decision. Organizations spanning the political spectrum have 

united in opposition to eminent domain abuse. Unfortunately, 

while several bills have been introduced in Congress, including one 

in the 109th Congress that passed the House by a vote of 376 to 

38, Congress has yet to pass this legislation. 

The Private Property Rights Protection Act introduced in this 

Congress is commonsense legislation that will stop the Federal 

Government from being complicit in an abuse of power already 

deemed intolerable by most individuals. 

It should be noted that eminent domain abuse was a problem before the Kelo decision, and it remains a problem today. We noted 

in the study that we released in 2003 that there were over 10,000 

instances of private-to-private transfers of property in a mere 5- 

year period. That is certainly an undercount of the number of times 

that eminent domain abuse occurs. In my written testimony we 

have documented several instances of eminent domain abuse that 

occurred, including several instances both before the Kelo decision 

and after the Kelo decision where these projects received Federal 

funds for this. 

As mentioned above, heeding a deafening public outcry against 

eminent domain abuse, 44 states have reformed their eminent domain laws in the wake of Kelo. These reforms vary greatly, and indeed no two states enacted the same legislative reforms, but eminent domain abuse has become virtually nonexistent in some 

states, while in others there remains serious abuse and much need 

for improvement. 

As Professor Beito just recently noted, Alabama passed legislation to roll back its eminent domain reform after being the first 

state to react legislatively to give its citizens stronger protection 

against this abuse of power. This demonstrates an ongoing need to 

remain vigilant against eminent domain abuse and for this Con-
45 

gress to act in order to not give Federal sanction to these abuses 

of private property rights. 

The legislation also contains important protections in order to 

preserve communities’ ability, for instance, to deal with truly 

blighted properties, properties that are abandoned, properties that 

pose direct threats to public health and safety. It should also be 

noted that this bill will not interfere with communities’ abilities to 

engage in economic development. Thankfully, most development occurs in this country without the use of eminent domain. These reforms and the reforms that have been passed by the states do not 

interfere with the ability of private property owners to sit down, 

negotiate, and engage in economic development projects. 

In this economy especially, Congress does not need to be spending scarce economic development funds for projects that not only 

abuse eminent domain and strip hard-working, tax-paying home 

and small business owners of their constitutional rights, but in 

many instances these projects fail. The project in New London, as 

Ms. Kelo mentioned, is Exhibit A for what happens when governments abuse eminent domain and engage in massive corporate welfare. After $80 million being spent over 12 years since the redevelopment plan has passed, over six or 7 years since Mrs. Kelo and 

her neighbors were forced out of their homes, there remains no economic development in this peninsula whatsoever, and it is a barren 

field. That is too often the legacy left behind this abuse of eminent 

domain. 

So we ask the Congress to pass the Private Property Rights Protection Act to protect homeowners like Ms. Kelo and small business 

owners throughout the country. Thank you very much. 

[The prepared statement of Mr. Bullock follows:] 
46 
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48 
49 
50 
51 
52 

Mr. FRANKS. Thank you, Mr. Bullock. 

Thank you all for your testimony, and we will now proceed under 

the 5-minute rule with questions, and I will begin by recognizing 

myself for 5 minutes. Ms. Kelo, I will begin with you. 

Let me add my own special expression of gratitude to you for 

being here and for all the things that you did to get here. 

Mrs. Kelo, you were provided monetary compensation for the 

property that the City of New London took from you, but could you 
53 

explain the emotional and sentimental costs that losing your home 

inflicted, a cost that money simply doesn’t compensate for? 

Ms. KELO. Correctly said. It really didn’t matter what they gave 

us. We did not want to leave our homes, all of us. It was never 

about the money, and we never talked about money. We never engaged in money conversations until the end, when we were forced 

to do so, after we had no choice and knew that we had to go. 

We had one family that was there since the 1890’s, and what 

they did to us was absolutely horrible. Nobody in this country 

should have to live the way we lived. Nobody in this country should 

have to live the way we lived and lose what we lost. 

Mr. FRANKS. Yes. Well, thank you. 

Mr. Bullock, let me ask you, this legislation takes Federal economic development funds away from local governments that violate 

private property rights for a period of 2 years. Some have argued 

that the removal of these funds is unnecessary and that the right 

of private action would be sufficient. Could you explain why, from 

an enforcement perspective, that taking away Federal economic development funds is an important component of the legislation? 

Mr. BULLOCK. Well, it would provide a very strong incentive for 

local communities to not engage in these types of abuses. It should 

be noted that this bill would not override the substantive rights 

that would still be given to private property owners to fight against 

takings of property. So this is not a bill that tries to impose some 

type of Federal standard of substantive rights into the court procedures that occur. So property owners would still, hopefully, if their 

state has passed good eminent domain legislation, would have the 

ability to fight the taking itself. What this bill I think really aims 

at is to try to persuade communities that engage in economic development to not abuse eminent domain in the first instance. If they 

don’t abuse eminent domain and if they are not taking people’s 

property against their will for private development projects, then 

there would be no effect upon those Federal economic development 

funds. 

Mr. FRANKS. Let me continue with you. It is very unfortunate 

that some of Ms. Crawford’s land is being taken to build the Keystone Pipeline. However, it is my understanding that, unlike the 

economic development taking in Kelo, that using eminent domain 

to take land to build a pipeline has traditionally been accepted to 

be a public use. Is using eminent domain for building a pipeline or 

any other public utility project a traditional, pre-Kelo use of the 

eminent domain power. Can you give us some contrasts? 

Mr. BULLOCK. Sure. That is something that Justice Thomas in 

his dissent in Kelo went through very carefully in looking at the 

history of eminent domain and in giving examples of how eminent 

domain is being used. Of course, he took the most restrictive definition of eminent domain possible. He really dissented alone, and he 

noted that common carriers and utilities have typically been granted eminent domain power to carry out those public uses. 

So that is quite different from the government taking land directly from one private property owner and handing it over to another private property owner that is not in any way a common carrier, has a special status under the law, but is just a garden-variety developer, whether it is a condominium developer or a big-box 
54 

retail developer, the creator of a lifestyle center, which if you look 

through my written testimony and most of the examples of eminent 

domain abuse, that is what these cases involve, is just pure private 

development takings. 

Mr. FRANKS. Thank you, sir. 

Dr. Beito, some of the opponents of this legislation have argued 

that there is no reason for Congress to step in and try to limit economic development takings, that states have already done enough. 

How would you respond to such an argument? 

Mr. BEITO. Well, again, the example of Alabama, this bill just 

last month was passed almost unanimously, and it specifically uses 

the term ‘‘eminent domain.’’ It gives an eminent domain protection 

for the automotive industry, I think biotech, several other industries. Now, what is interesting about this is that just after it 

passed, people were challenged on it, and some people who voted 

for it said, well, oh, we didn’t mean to undermine eminent domain, 

but maybe our wording was sloppy and maybe we need to do something about it. So this kind of thing I think happens a lot in legislative bodies. Bills sort of are pushed through, nobody is really paying attention, and before you know it, it is there, and it stays there 

usually, even though we have some regret being expressed, and I 

suspect this kind of thing happens a lot. 

This doesn’t limit the freedom of states, the ability of states to 

use eminent domain, even for private development. All it is saying 

is that we don’t want our Federal subsidies to go for this, which 

I think is an important distinction to make. 

Mr. FRANKS. Well, I thank you all. I will now recognize the 

Ranking Member for 5 minutes for his questions. 

Mr. NADLER. Thank you, Mr. Chairman. 

We all have considerable unease about eminent domain. I certainly do, too, and it certainly has been abused in the past. I prefer 

to let the states deal with it to a large extent, but my real concern 

with this bill goes beyond generalities. I want to ask Mr. Bullock 

a few questions about it. 

The bill says that a state, a political subdivision, cannot condemn 

by eminent domain a property for purposes of economic development, and if it does, for a period of 7 years thereafter, for a period 

of 7 years from when such a use is consummated, the former property owner may sue. And if he sues, the remedy is cessation of economic aid from the Federal Government. That is the remedy 

scheme. 

Now, what bothers me about this is, aside from the fact that it 

doesn’t help the property owner, all it does is perhaps bankrupt the 

municipality. 

Let’s assume that a municipality condemns a property for a use 

which it thinks proper, let’s say for a school, a public use. Let’s assume that the funding for the school dries up because Congress enacts a sequestration and there is no more money for schools. That 

has been known to happen. Let’s assume that a few years later, 

after five or 6 years, the municipality realizes it has no money for 

a school, and anyway there aren’t that many school kids anymore 

because everybody has moved away because they closed the defense 

plant, so now it sells the property. 
55 

The original purpose was a legitimate use, for a school. Now it 

sells the property to a private developer as surplus property. Now 

someone can come in and sue the government and sue the municipality to eliminate Federal aid for a few years. That is the way this 

bill works. Am I correct in saying that? 

Mr. BULLOCK. Well, that is not my understanding of how the bill 

would work. 

Mr. NADLER. Well, that is exactly what the bill says. 

Mr. BULLOCK. And I think if it goes to the private enforcement 

mechanism for it, I think it is important to have that because—— 

Mr. NADLER. Never mind if it is important to have it. Why 

wouldn’t it operate as I just said? 

Mr. BULLOCK. I am sorry? 

Mr. NADLER. Why wouldn’t it operate as I just said? I don’t doubt 

that the authors of the bill thought it important to have that clause 

in it for various reasons. I think it is a very misguided clause. I 

think all it will do is enable states to be sued, to lose their economic aid even if they proceed in perfectly good faith and for some 

reason the public purpose fell through and now they sell it as surplus property. 

Mr. BULLOCK. The reason why you have the 7-year limit in there 

and why I think it is a central part of the bill is so you do not get 

into a situation—— 

Mr. NADLER. I understand that, but why wouldn’t it operate the 

way I just said? And if it does operate the way I just said, wouldn’t 

that be a pretty perverse result? 

Mr. BULLOCK. A pretty perverse result? 

Mr. NADLER. Yes. In other words, a state decides they are going 

to build a school. It condemns the property for the school. For some 

reason, the school doesn’t get built, and then five or 6 years later 

it sells the property as surplus property to some private owner, at 

which point it is subject to lawsuits to stop economic aid. 

Mr. BULLOCK. Right. I don’t know in those circumstances who 

would actually sue, because—— 

Mr. NADLER. The former property owner would sue. 

Mr. BULLOCK. Right, but there could be a solution to this. 

Mr. NADLER. Well, I would like to see it. I have been asking this 

question for 4 years now. 

Mr. BULLOCK. Sure. But, I mean, you can always come up with 

certain types of hypotheticals that might—— 

Mr. NADLER. But this is very important. This is how it would 

normally operate. 

Mr. BULLOCK. I have never heard of this situation. 

Mr. NADLER. You haven’t gone to the—well, here is the bill, page 

2. The bill is very clear in what it says, and it would operate the 

way I just said, unless you can tell me why it wouldn’t. 

Mr. BULLOCK. You are asking the question as a hypothetical, and 

I am saying could this possibly happen? Maybe. I don’t know of any 

other instances where it has happened. 

Mr. NADLER. Well, we haven’t had this bill. 

Mr. BULLOCK. Right, but I am talking about—— 

Mr. NADLER. But that scenario happens all the time. 

Mr. BULLOCK. No, it does not happen all the time. 
56 

Mr. NADLER. It does not happen all the time that a government 

entity condemns the property from eminent domain for a project 

that ultimately falls through and then sells the property? 

Mr. BULLOCK. The key to this and why this provision is in there 

and why it is important to have it in there, leaving aside whatever 

hypothetical that might come up, that you might come up with, is 

to prevent a situation, the government from engaging in—— 

Mr. NADLER. I understand that. That is the purpose. The effect 

is quite different. The purpose may be laudable. The effect is what 

I just said, and you haven’t told me why the effect isn’t as I just 

said. 

Mr. BULLOCK. Well, I don’t know how you remedy a situation 

that is both hypothetical—— 

Mr. NADLER. Well, let me ask you a different question, then. 

Let’s assume that the government does nothing wrong. It doesn’t 

even, in fact, condemn anything by eminent domain, but it wants 

to float a bond for economic development, and part of the revenue 

stream against which it is going to float the bond is anticipated 

Federal aid, which is what governments do. We are anticipating X 

dollars in Federal aid per year. We are going to float a bond for 

economic development, and this is part of our backing for the bond. 

Along comes bond counsel and says you can’t do that because 

maybe the mayor who hasn’t been elected yet—the mayor is going 

to be elected 4 years from now—maybe he will misuse the power 

of eminent domain and subject the county to this penalty, in which 

case there will be no Federal economic aid, and therefore we can’t 

okay this bond. So you are destroying the bonding capacity of local 

governments without the government ever even doing anything. 

Mr. FRANKS. The gentleman’s time has expired, but the witness 

may answer the question. 

Mr. BULLOCK. If I could just respond directly. There is one simple solution to this, and it is a solution to even your original hypothetical. Don’t use eminent domain, don’t use the property—— 

Mr. NADLER. What I just said would happen if they didn’t use 

eminent domain. Just the existence of the statute would present 

that possibility. 

Mr. BULLOCK. If a future mayor did not use eminent domain for 

private development, there would not be an issue with it. That is 

what this does. 

Mr. NADLER. No, no. You are missing the point. 

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

Mr. NADLER. Can I ask for one additional minute? 

Mr. FRANKS. Without objection. 

Mr. NADLER. Thank you. 

The point is, the existence of this statute on the books would put 

a cloud, like a cloud of title, like a cloud on title, here being a cloud 

on future revenue. In case the city in the future screwed up and 

improperly used eminent domain, that would eliminate Federal aid 

in the future. Therefore, you cannot depend on the Federal aid 

now. Therefore, you can’t float the bond. Any bond counsel would 

rule that way. 

Mr. BULLOCK. Right. And if a future counsel or a future mayor 

does not abuse eminent domain, which is the whole point of this, 

is to provide a strong disincentive—— 
57 

Mr. NADLER. Underwriting the bond, you have to assume that 

that might happen. The point is that now, that bonds could not be 

underwritten now because maybe that improper use would happen 

in the future, and the bill would then eliminate the ability to pay 

back the bond. So you couldn’t underwrite the bond now even if no 

one ever misbehaves in any way. 

It puts a cloud on—not a cloud on title but a cloud on revenue, 

even if nobody ever does anything, and that is the basic flaw in 

this bill. It would eliminate the possibility, to a very large extent, 

of use of Federal financing as a basis for bonding for future economic development in states. 

I thank the Chairman for yielding me the extra time. 

Mr. FRANKS. The Chairman now recognizes Mr. DeSantis, the 

gentleman from Florida, for 5 minutes. 

Mr. DESANTIS. Thank you, Mr. Chairman, and thank you for 

holding this very important hearing. 

Kelo v. City of New London to me was wrongly decided. I think 

it is actually an example of judicial activism. Now, the Court didn’t 

actually strike anything down. It allowed this to go, but I think 

when courts twist texts to fit their desired outcome, when they manipulate or abuse precedent, that is a form of judicial activism in 

that you are abandoning, I think, the traditional judicial role, and 

that is really the key takeaway from Kelo, is that you had five justices empower the government at all levels at the expense of private property owners. 

I thought Sandra Day O’Connor hit it on the head in her dissent 

when she said, ‘‘Under the banner of economic development, all private property is now vulnerable to be taken and transferred to another private owner so long as it might be upgraded—i.e., given to 

an owner who will use it in a way that the legislature deems more 

beneficial to the public—in the process.’’ And so under Kelo, private 

property is essentially at the mercy of central planners who may 

very well deem an individual’s property too blighted and not optimal for commandeering the amount of tax revenues required to 

fund the ambitions of the central planners. So I just think it was 

a wrong turn. 

Mrs. Kelo, I want to thank you for what you did to fight this and 

for coming and appearing today. In terms of fighting this, I mean, 

how many different cases—because it went all the way up to the 

Supreme Court. Can you just briefly explain the process that you 

had to go through to try to vindicate your rights? 

Ms. KELO. Well, Scott took the case. We started really just as 

grassroots and trying to fight it just with the neighborhood, and 

then the Institute for Justice got involved, and then we had to go 

to the Connecticut court, the New London Superior Court, and then 

to the state Supreme Court, and then to the United States Supreme Court. 

Mr. DESANTIS. And you had mentioned that the Institute for Justice took your case. Had they not been willing to do that, would you 

have had the resources or the time—— 

Ms. KELO. Oh, absolutely not. 

Mr. DESANTIS [continuing]. To take it all the way up there? 

Ms. KELO. Absolutely not. Absolutely not. Absolutely not. No, no. 
58 

Mr. DESANTIS. Now, I guess you mentioned it in your opening 

statement, but you had your house taken. It was taken not for a 

traditional public use, like a road or a bridge, but to transfer to a 

private company who they thought would generate more tax revenue, essentially, and you mentioned that it has all kind of gone 

kaput. Can you just elaborate on that a little bit? Because I just 

find that amazing that you had gone through all of this, and now 

what they were promising didn’t even happen. 

Ms. KELO. That is correct. Nothing has been built or even developed there. As a matter of fact, as they took the properties by eminent domain, or as people, the elderly gave in and moved, they destroyed the houses one by one. So there was actually nothing even 

left in the neighborhood to save because they had tore down the 

houses. 

They tore down the house right next to me, and the houses were 

very close to each other, maybe only 15 or 20 feet apart, and with 

the threat of the neighbor’s house being collapsed on my house that 

I was living in. So they systematically destroyed the neighborhood 

to make it so we were fighting for—there was nothing left to fight 

for. 

Mr. DESANTIS. And you support this particular piece of legislation, and have you been involved in some of the efforts in some of 

the states to curb eminent domain abuse that has occurred since 

your case was decided at the Supreme Court? 

Ms. KELO. Yes, I have. Yes. 

Mr. DESANTIS. Okay. And I would just say, again, thank you for 

what you have done. I think that your case has brought this issue 

to the forefront, and a lot of folks, their rights are at stake too. So 

you have done a great bit of good. 

And I would also say, even though I disagreed with the decision, 

at least if a court fails to enforce a limitation on government, or 

fails to enforce a right, at least it allows states and Members of 

Congress to legislate protections for people. When the Court strikes 

down things and they are activists in that direction, that kind of 

freezes that and you need a constitutional amendment. So even 

though I thought it was a bad decision, I am happy that states 

have taken the lead in reforming this, and I think that I am certainly very favorably disposed to this piece of legislation, and I 

think it is common sense. I think it is consistent with the freedoms 

that the Founding Fathers intended, and I yield back, Mr. Chairman. 

Ms. KELO. Thank you. 

Mr. FRANKS. And I thank the gentleman. 

Now I recognize the gentleman from Michigan, Mr. Conyers, for 

5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Dr. Beito, isn’t it correct that there was objection to the Supreme 

Court decision in this matter because they added this new concept 

of economic development to expand the tax base was now a new 

reason to use eminent domain? 

Mr. BEITO. Yes. I am not an expert in the legal history, but that 

was certainly one of the justifications. You could say that the door 

had really been opened in 1954 by Berman v. Parker, which used 

this doctrine of public purpose to say, well, you can—loosely inter-
59 

preted the doctrine of public use. But I think that Kelo was sort 

of more notorious for focusing on that aspect of it. 

Mr. CONYERS. And coming to you, Attorney Bullock, do you think 

that they also expanded the public purpose concept as an additional reason for eminent domain, which hadn’t existed as clearly 

before? 

Mr. BULLOCK. That is correct, Representative Conyers. For the 

past 50 years, as Professor Beito pointed out, the Supreme Court 

had given a broad interpretation to the public use clause. I think 

wrongly, they have really turned it into a public purpose clause or 

a public benefit clause. 

But despite this broad language in previous decisions, the Supreme Court had never signed off on saying that merely using eminent domain simply to raise more tax revenue or to create more 

jobs to further economic development was a public use. That is 

what the majority opinion did in Kelo, and that is one of the real 

dangers of it, is because it is really a vision of eminent domain 

without any sort of limitation. Every home would produce more tax 

revenues and jobs if it were a business. Every small business, at 

least theoretically, would produce more jobs and tax revenue if it 

were a larger business. So that is the real danger of the Kelo decision. That is why there is the need for the reform at both the state 

level and then hopefully at the Federal level as well. 

Mr. CONYERS. Thank you. 

Mrs. Crawford, the irony of your situation that brings you here 

today is that, of all things, it was the Keystone Pipeline, of all the 

businesses that could ever be imagined. Here is an issue so controversial that the President still hasn’t announced what he is 

going to do, and these are the same people that visited you. I think 

you said, in effect, they told you that you couldn’t win anyway, that 

you ought to cooperate a little bit more. Isn’t that the gist of your 

testimony? 

Ms. CRAWFORD. Yes, sir. And in court transcripts, there were 

comments made by their attorneys that said she will have her day 

in court, but they are not going to win under this statute, or we 

are not going to let one landowner stand in the way of a multi-billion-dollar pipeline that is for the public good. 

Our position is that until you prove it is for the public good, and 

if you are unwilling to provide any documents, then the only assumption I can make is that it is for private gain. So it is a foreign 

corporation using Texas to push a product through to export it for 

someone else, and that, sir, is not for the public good. 

I am not against eminent domain if someone is bringing water 

to a community or building a road or building a hospital. But they 

are taking my land because they need a way to get product from 

Canada to probably foreign markets. That is not benefitting me. 

Mr. CONYERS. Well, I am glad to hear you say that, because this 

is a question of how far should eminent domain be allowed to go. 

And here, we are not talking about a clean American product. Here 

we are talking about a product that is so controversial, with sands 

and detriment and debris—I can’t adequately describe what the scientific issue is with the XL Pipeline, but for them of all companies 

in this country to tell you that we can take it anyway because we 

are going to extend economic development and we are going to 
60 

claim it is for a public purpose, I just think you are to be commended for continuing this battle, and I am glad that the Chairman has had another hearing on this. Would you make your final 

comment? 

Ms. CRAWFORD. Well, I am just a farmer, so all this legalese is 

very difficult for me. But from my perspective, it seems a bit—it 

is hypocrisy to have a bill that claims to be so concerned about the 

property rights of individuals but then provides an exclusion for 

the guy with the biggest hammer, and he is beating us over the 

head with it. That seems to be a little one-sided. 

Mr. CONYERS. Thank you very much. 

Mr. FRANKS. And I thank the gentleman, and I now recognize the 

gentleman from Virginia, Mr. Scott, for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Bullock, just a couple of questions on the technical aspects 

of the bill. If you are in violation, what are the sanctions to be applied? Is it just loss of economic development funds? Is there any 

cloud over the title of the land? 

Mr. BULLOCK. Not from my understanding of the bill, my reading 

of it. 

Mr. FRANKS. Sir, can you pull your microphone? 

Mr. BULLOCK. Sorry. I am a litigator, so I have not litigated that. 

But from my understanding, it would be simply a loss of Federal 

economic development funds. 

Mr. SCOTT. There is no cloud over the title of the land? 

Mr. BULLOCK. I don’t see how that could be. As I mentioned before, the property owners that are fighting this or are in dispute 

with local governments and so forth would still have the ability to 

raise whatever the claims they might within the state court litigation in which this has been taking place. 

Mr. SCOTT. Well, if it is public good but for economic development, if you can take it, this bill would just say if it is for economic 

development, you have to give up some Federal funds. It doesn’t 

stop the proceedings from going forward. 

Mr. BULLOCK. Correct, and that is why I think it is a balanced 

approach. It is not the Federal Government coming in and overriding decisions made in the state courts or providing some type of 

substantive rights to it. It is simply saying these are scarce Federal 

economic development funds; we don’t want these funds to be used 

to facilitate economic—— 

Mr. SCOTT. Okay. And if you are in violation but don’t do anything for 7 years, you just let it stay there before you develop it, 

are there any sanctions? 

Mr. BULLOCK. No, I think it is a 7-year limit. So I think that that 

is something that is—— 

Mr. SCOTT. So if you haven’t done anything for 7 years, you are 

home free? 

Mr. BULLOCK. Well, I think, from my reading of it, that is a way 

to balance it so you do not have a situation where property is taken 

for a supposed public purpose and then turned around and given 

to private development interests. The 7 years allows, I think, for 

a bit of a compromise, where if you wait for 8 or 9 years, perhaps 

you could do that and sell it for private development purposes; or, 

as I was responding to Representative Nadler before, is that even 
61 

if it is taken for a school and the government decides that they 

don’t need a school anymore, they can still use it for another public 

project, whether it is a public park or—— 

Mr. SCOTT. Or they could wait 7 years and give it to a private 

developer. 

Mr. BULLOCK. Yes, I think that is right. Again, it is a way to try 

to balance not locking the government in perpetuity to having 

these restrictions on it, but still would prevent a situation where 

the government—— 

Mr. SCOTT. Okay. I am not arguing that fact. I am just trying 

to get some facts. If the city were to take the property and, rather 

than give it to a private entity, gave it to a public-owned redevelopment authority, would that be okay? 

Mr. BULLOCK. Well, it would depend on what the public redevelopment authority did with it. 

Mr. SCOTT. Economic development. 

Mr. BULLOCK. Yes. I think if they transferred it to, then, private 

parties, which is typically what redevelopment agencies do, then 

the restrictions would still kick in. 

Mr. SCOTT. So if the redevelopment authority didn’t give it to private people for the first 7 years, then they would be home free. 

Mr. BULLOCK. I think that that is right. 

Mr. SCOTT. What if they gave it to a non-profit, not a for-profit? 

Mr. BULLOCK. For a non-profit? 

Mr. SCOTT. Right. Does the language in the bill say you can’t 

give it to a for-profit private agency, for profit? 

Mr. BULLOCK. I would have to look at the particular provisions 

of it. I can’t remember exactly what it would be. 

It would be important, though, to prevent a situation like what 

was happening in New London, and I think the bill does do this 

by preventing these leasehold agreements, where I think the bill is 

quite careful to try to prevent the government from doing like what 

happened in New London, where the property was originally given 

to a non-profit development corporation called the New London Development Corporation, but then they were going to lease that land 

for $1 a year for the next 99 years to private developers. That bill 

addresses something like that and prevents that situation from occurring. 

Mr. SCOTT. Dr. Beito, are you a lawyer? Dr. Beito? 

Mr. BEITO. Me? 

Mr. SCOTT. Yes. 

Mr. BEITO. No, no. 

Mr. SCOTT. Does anybody know what effect this part of the bill 

says that essentially waives the 11th Amendment to the Constitution, what effect that would have on the application of the 11th 

Amendment? It seems to me you just can’t say the Constitution 

doesn’t apply to this bill. I don’t think that has much effect at all. 

Does anybody disagree with that? 

Mr. BULLOCK. I don’t think it would. You know, the one thing it 

would do and that might be in there to allow for a private cause 

of action against folks, which I think is important to do to make 

sure it is enforced. However, it would not be for money damages. 

I mean, the property owner would not have the ability under this 
62 

bill to enforce the provisions of it to gain any type of monetary 

damages, which would implicate—— 

Mr. SCOTT. A statute cannot waive the application of a part of 

the United States Constitution; is that right? 

Mr. BULLOCK. Absolutely. The Constitution is paramount. That 

is true. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. FRANKS. And thank you, Mr. Scott. 

This concludes today’s hearing. So I want to thank the witnesses 

again for being here, thank the Members for their attendance, and 

those that were in the audience. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

I do thank the witnesses again, and I thank the Members and 

the audience, and this hearing is adjourned. 

[Whereupon, at 11:25 a.m., the Subcommittee was adjourned.] 
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