II 

110TH CONGRESS 

1ST SESSION S. 48 

To return meaning to the Fifth Amendment by limiting the power of eminent 

domain. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 4, 2007 

Mr. ENSIGN (for himself, Mr. DEMINT, and Mr. INHOFE) introduced the 

following bill; which was read twice and referred to the Committee on Finance 

A BILL 

To return meaning to the Fifth Amendment by limiting 

the power of eminent domain. 

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’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) The founding fathers held dear the funda9 mental rights associated with the ownership of pri10 vate property. 


cprice-sewell on PROD1PC71 with BILLS
2 

•S 48 IS

1 (2) In 1788, James Madison recognized the 

2 connection between freedom and property rights 

3 when he wrote in Federalist No. 10 that the right 

4 to own property originates in free thought and that 

5 it is the Government’s job to protect such rights. 

6 (3) In 1792, in an essay entitled ‘‘Property’’, 

7 James Madison wrote, ‘‘where an excess of power 

8 prevails, property of no sort is duly respected. No 

9 man is safe in his opinions, his person, his faculties, 

10 or his possessions.’’. 

11 (4) In the ‘‘Property’’ essay, James Madison 

12 also wrote, ‘‘Government is instituted to protect 

13 property of every sort. . . . This being the end of 

14 government, that alone is a just government, which 

15 impartially secures to every man, whatever is his 

16 own.’’. 

17 (5) In 1775, the Virginia patriot Arthur Lee 

18 wrote, ‘‘The right of property is the guardian of 

19 every other right, and to deprive a people of this, is 

20 in fact to deprive them of their liberty.’’. 

21 (6) In 1783, Benjamin Franklin wrote, ‘‘All the 

22 property that is necessary to a Man, for the Con23 servation of the Individual and the Propagation of 

24 the Species, is his natural Right, which none can 

25 justly deprive him of.’’. 


cprice-sewell on PROD1PC71 with BILLS
3 

•S 48 IS

1 (7) In 1787, John Adams wrote, ‘‘The moment 

2 the idea is admitted into society that property is not 

3 as sacred as the laws of God, and that there is not 

4 a force of law and public justice to protect it, anar5 chy and tyranny commence.’’. 

6 (8) In 1795, Supreme Court Justice William 

7 Patterson wrote, in the case Vanhorne’s Lessee v. 

8 Dorrance: ‘‘From these passages it is evident; that 

9 the right of acquiring . . . property, and having it 

10 protected, is one of the natural, inherent, and 

11 unalienable rights of man. Men have a sense of 

12 property: Property is necessary to their subsistence, 

13 and correspondent to their natural wants and de14 sires; its security was one of the objects, that in15 duced them to unite in society. No man would be16 come a member of a community, in which he could 

17 not enjoy the fruits of his honest labor and industry. 

18 The preservation of property then is a primary ob19 ject of the social compact, and . . . was made a fun20 damental law.’’. 

21 (9) In 1798, the Supreme Court considered the 

22 case of Calder v. Bull, in which Justice Samuel 

23 Chase recognized that government action which is 

24 ‘‘contrary to the great first principles of the social 

25 compact, cannot be considered a rightful exercise of 


cprice-sewell on PROD1PC71 with BILLS
4 

•S 48 IS

1 legislative authority’’ which he explained with the 

2 following example: ‘‘. . . a law that takes property 

3 from A and gives it to B: It is against all reason and 

4 justice, for a people to entrust a Legislature with 

5 such powers . . . .’’. 

6 (10) On March 6, 1860, Abraham Lincoln stat7 ed that the institution of slavery is reprehensible be8 cause it offends the right of man to keep the fruits 

9 of his own labor and thus denies man the right to 

10 own property. 

11 (11) In a stark departure from the honor and 

12 recognition given individual private property rights 

13 under the United States Constitution, the United 

14 States Supreme Court in the case of Kelo v. City of 

15 New London, issued a decision on June 23, 2005, 

16 by a 5 to 4 vote, that eminent domain may be used 

17 to seize property for the purpose of private economic 

18 development. 

19 (12) Justice Sandra Day O’Connor rightly stat20 ed in her dissenting opinion in Kelo, ‘‘the govern21 ment now has license to transfer property from 

22 those with fewer resources to those with more. The 

23 Founders cannot have intended this perverse re24 sult.’’. 


cprice-sewell on PROD1PC71 with BILLS
5 

•S 48 IS

1 (13) Justice O’Connor further wrote, ‘‘any 

2 property may now be taken for the benefit of an3 other private party, but the fallout from this deci4 sion will not be random. The beneficiaries are likely 

5 to be those citizens with disproportionate influence 

6 and power in the political process, including large 

7 corporations and development firms.’’. 

8 (14) Justice O’Connor also wrote about the ef9 fects of the Kelo ruling: ‘‘To reason, as the Court 

10 does, that the incidental public benefits resulting 

11 from the subsequent ordinary use of private property 

12 render economic development takings ‘for public use’ 

13 is to wash out any distinction between private and 

14 public use of property—and thereby effectively to 

15 delete the words ‘for public use’ from the Takings 

16 Clause of the Fifth Amendment.’’. 

17 (15) Justice Clarence Thomas wrote, ‘‘I do not 

18 believe that this Court can eliminate liberties ex19 pressly enumerated in the Constitution.’’. 

20 (16) The City Council of New London, Con21 necticut, created the New London Development Cor22 poration (‘‘NLDC’’) as a 501(c)(3) non-profit orga23 nization and authorized the NLDC to purchase 

24 property or to acquire private property for economic 


cprice-sewell on PROD1PC71 with BILLS
6 

•S 48 IS

1 development purposes by exercising eminent domain 

2 in the City’s name. 

3 (17) NLDC’s actions, which were the subject of 

4 the lawsuit in the Kelo case, were made possible by 

5 numerous Federal grants and direct appropriations, 

6 including: $2,000,000 from the Economic Develop7 ment Administration in 2001, $750,000 from the 

8 Department of Labor in 2000, $125,000 from the 

9 Fannie Mae Foundation in 2000, and an earmark of 

10 $100,000 in the FY2001 VA–HUD appropriations 

11 Act (Public Law 106–988). 

12 (18) The Kelo decision stands as a repudiation 

13 of the principle of the Fifth Amendment, as em14 bodied by the writings of James Madison, Benjamin 

15 Franklin, John Adams, and Abraham Lincoln, and 

16 also as had previously been recognized by the Su17 preme Court. 

18 (19) Congress has encouraged the State and 

19 local governments’ practice of using eminent domain 

20 to further economic development by using the Fed21 eral purse strings to incentivize such practices 

22 through Federal grants and direct appropriations. 

23 (20) Congress has also created extensive tax24 based incentives to encourage State and local govVerDate Aug 31 2005 23:36 Jan 09, 2007 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S48.IS S48

cprice-sewell on PROD1PC71 with BILLS
7 

•S 48 IS

1 ernments to condemn private property for economic 

2 development purposes. 

3 (21) In a joint amicus brief, the National Asso4 ciation for the Advancement of Colored People and 

5 the American Association of Retired Persons stated, 

6 ‘‘The takings that result [from the Court’s decision 

7 in Kelo] will disproportionately affect and harm the 

8 economically disadvantaged and, in particular, racial 

9 and ethnic minorities and the elderly.’’. 

10 (22) The Supreme Court’s decision to expand 

11 eminent domain is also troubling for religious insti12 tutions, as this ruling will disproportionately nega13 tively impact these institutions as they are often 

14 non-profit and almost universally tax-exempt. As a 

15 result, the property owned by religious institutions is 

16 particularly vulnerable to this type of taking, as the 

17 ruling of the court disfavors non-profit, tax-exempt 

18 property owners in favor of for-profit, tax generating 

19 businesses. 

20 (23) It is in the best interest of the American 

21 people for Congress to prohibit Federal funding and 

22 to restrict tax benefits from accruing to any person, 

23 party, or governmental authority who would seek to 

24 acquire private property through seizure by eminent 

25 domain for economic development purposes. 


cprice-sewell on PROD1PC71 with BILLS
8 

•S 48 IS

1 (24) Congress can restrict the use of Federal 

2 funds and the availability of Federal tax incentives 

3 to discourage the activities of State and local gov4 ernments. 

5 (25) It is the responsibility and obligation of 

6 Congress to act to protect private property rights 

7 and to further the protections afforded to private 

8 parties by the United States Constitution under the 

9 Fifth Amendment and to prevent the unjust use of 

10 the power of eminent domain. 

11 SEC. 3. DEFINITIONS. 

12 For purposes of this Act: 

13 (1) ACQUIRING PARTY.—The term ‘‘acquiring 

14 party’’ means any person or party that acquires a 

15 real property interest from a condemning authority, 

16 which took title to such real property interest by the 

17 use of eminent domain or the threat of the use of 

18 eminent domain, including any— 

19 (A) individual; 

20 (B) trust; 

21 (C) charity; 

22 (D) corporation; 

23 (E) partnership; or 

24 (F) limited liability company. 


cprice-sewell on PROD1PC71 with BILLS
9 

•S 48 IS

1 (2) BLIGHTED PROPERTY.—The term ‘‘blighted 

2 property’’ includes any— 

3 (A) property which because of physical 

4 condition, use, or occupancy constitutes a public 

5 nuisance or attractive nuisance; 

6 (B) dwelling which, because it is dilapi7 dated, unsanitary, unsafe, vermin-infested, or 

8 lacking in the facilities and equipment required 

9 by the housing code of the municipality, is unfit 

10 for human habitation; 

11 (C) structure which is a fire hazard, or is 

12 otherwise dangerous to the safety of persons or 

13 property; 

14 (D) structure the utilities, plumbing, heat15 ing, sewer, or other utility services of which 

16 have been disconnected, destroyed, moved, or 

17 rendered ineffective such that the property is 

18 unfit for its intended use; 

19 (E) vacant or unimproved lot or parcel of 

20 ground in a predominately built-up-neighbor21 hood, which by reason of neglect or lack of 

22 maintenance has become a place for accumula23 tion of trash and debris or a haven for rodents 

24 or other vermin; 


cprice-sewell on PROD1PC71 with BILLS
10 

•S 48 IS

1 (F) property that has tax delinquencies ex2 ceeding the fair market value of the property; 

3 (G) property with code violations affecting 

4 health or safety that has not been substantially 

5 rehabilitated within 1 year of the receipt of no6 tice to rehabilitate from the appropriate hous7 ing code enforcement agency; or 

8 (H) abandoned property. 

9 (3) CONDEMNING AUTHORITY.—The term ‘‘con10 demning authority’’ means any authority, utility, or 

11 co-operative which exercises the power of eminent 

12 domain either directly or by a delegation of power, 

13 including any— 

14 (A) State; 

15 (B) county; 

16 (C) municipality, 

17 (D) city; 

18 (E) town, whether private or public; 

19 (F) corporation, whether for profit or not 

20 for profit; and 

21 (G) district. 

22 (4) GOVERNMENT.—For purposes of sections 6, 

23 7, and 8, the term ‘‘government’’— 

24 (A) means— 


cprice-sewell on PROD1PC71 with BILLS
11 

•S 48 IS

1 (i) a State, county, municipality, or 

2 other governmental entity created under 

3 the authority of a State; 

4 (ii) any branch, department, agency, 

5 instrumentality, or official of an entity list6 ed in clause (i); and 

7 (iii) any other person acting under 

8 color of State law; and 

9 (B) includes the United States, a branch, 

10 department, agency, instrumentality, or official 

11 of the United States, and any other person act12 ing under color of Federal law. 

13 (5) INCIDENTAL ECONOMIC BENEFIT.—The 

14 term ‘‘incidental economic benefit’’— 

15 (A) means the use of any property for any 

16 project that is neither— 

17 (i) a public use; or 

18 (ii) a public purpose; and 

19 (B) includes projects which rely on emi20 nent domain to acquire property and which are 

21 done— 

22 (i) for the purpose of enhancing or in23 creasing the tax base of a condemning au24 thority; 


cprice-sewell on PROD1PC71 with BILLS
12 

•S 48 IS

1 (ii) for the purpose of creating jobs 

2 within the jurisdiction of a condemning au3 thority; or 

4 (iii) in furtherance of economic devel5 opment. 

6 (6) PROPERTY OWNER.—The term ‘‘property 

7 owner’’ means any person with a real property inter8 est, whether possessory or not, that is being taken 

9 under the power of eminent domain. 

10 (7) PUBLIC PURPOSE.—The term ‘‘public pur11 pose’’— 

12 (A) means the use of property acquired by 

13 eminent domain that furthers a legitimate gov14 ernmental purpose to directly and substantially 

15 protect the health, safety, and welfare of the 

16 public; and 

17 (B) includes— 

18 (i) condemnation of any severely 

19 blighted property; 

20 (ii) the development of any property 

21 to provide public utilities, including— 

22 (I) electric; 

23 (II) gas; 

24 (III) phone; 

25 (IV) cable; 


cprice-sewell on PROD1PC71 with BILLS
13 

•S 48 IS

1 (V) water service and sewer; and 

2 (VI) wi-fi networks; 

3 (iii) hydro-electric projects and flood 

4 control measures; 

5 (iv) development of waste, recycling, 

6 and waste treatment facilities; and 

7 (v) development of any property to 

8 provide an essential public health or safety 

9 service such as a privately operated prison 

10 or hospital. 

11 (8) PUBLIC USE.—The term ‘‘public use’’— 

12 (A) means any use of property acquired by 

13 eminent domain that is— 

14 (i) used by a governmental entity; 

15 (ii) owned, operated, or maintained by 

16 a government entity and used by the public 

17 as a right-of-way; or 

18 (iii) used by a common carrier; and 

19 (B) includes— 

20 (i) right-of-ways; 

21 (ii) roadways; 

22 (iii) highways; 

23 (iv) interstates; 

24 (v) interchanges; 

25 (vi) bike paths; 


cprice-sewell on PROD1PC71 with BILLS
14 

•S 48 IS

1 (vii) waterways and navigable waters; 

2 (viii) airports, railroads, and other 

3 transportation needs; and 

4 (ix) public parks and public buildings, 

5 including— 

6 (I) schools; 

7 (II) hospitals; 

8 (III) prisons; 

9 (IV) government buildings; and 

10 (V) sports stadiums, theaters, or 

11 other public entertainment venues 

12 provided that any takings for these 

13 projects is limited solely to the real 

14 property necessary for— 

15 (aa) the construction of such 

16 stadiums, theaters or venues; and 

17 (bb) parking facilities and 

18 public transportation and access 

19 roads to and from such stadiums, 

20 theaters or venues. 

21 (9) REAL PROPERTY INTEREST.—The term 

22 ‘‘real property interest’’ means any— 

23 (A) fee title interest; 

24 (B) lease interest; 

25 (C) easement; 


cprice-sewell on PROD1PC71 with BILLS
15 

•S 48 IS

1 (D) development rights; 

2 (E) mineral rights; 

3 (F) water rights; 

4 (G) rights in real property related to sky, 

5 air, or vision which affect the value of such real 

6 property; or 

7 (H) future interest in any of the real prop8 erty interests or rights described in subpara9 graphs (A) through (G). 

10 SEC. 4. DENIAL OF FEDERAL FUNDS FOR TAKINGS NOT 

11 FOR THE PUBLIC USE. 

12 (a) DENIAL OF FUNDS.—A condemning authority or 

13 acquiring party that engages or participates in a taking 

14 or condemnation of any real property interest not for a 

15 public use or public purpose, without the consent of the 

16 owner of such real property interest, under the power of 

17 eminent domain pursuant to the Fifth Amendment of the 

18 United States Constitution, or under any relevant State 

19 constitution, statute, or regulation, shall not be eligible to 

20 receive any Federal funds, including any funds appro21 priated by Congress or otherwise expended from the Fed22 eral treasury. 

23 (b) CERTIFICATION OF ELIGIBILITY TO RECEIVE

24 FUNDS.— 


cprice-sewell on PROD1PC71 with BILLS
16 

•S 48 IS

1 (1) IN GENERAL.—Any entity applying for Fed2 eral funds shall certify to the appropriate Federal 

3 agency, under penalty of perjury, that any funds it 

4 receives will not be used to— 

5 (A) develop any real property which is sub6 ject to or otherwise subsequently becomes sub7 ject to a Fifth Amendment property protection 

8 statement; 

9 (B) further any economic development as10 sociated with an exercise of eminent domain 

11 power which is not in furtherance of a public 

12 use or public purpose; or 

13 (C) provide, further, or enhance an inci14 dental economic benefit. 

15 (2) REGULATIONS REQUIRED.—The Secretary 

16 of the Treasury shall promulgate rules and regula17 tions to establish the procedures and rules regarding 

18 the certification required under paragraph (1), in19 cluding— 

20 (A) certification language; and 

21 (B) application forms. 

22 (3) NOTICE TO THE IRS.—Each Federal agency 

23 shall forward a copy of each certification required 

24 under paragraph (1) that it receives to the Commis25 sioner of Internal Revenue. 


cprice-sewell on PROD1PC71 with BILLS
17 

•S 48 IS

1 (4) AUDITS.— 

2 (A) AUTHORITY.—The Commissioner of 

3 Internal Revenue may conduct an audit of any 

4 condemning authority or acquiring party that 

5 has made a certification under paragraph (1) 

6 and may review such books, records, and mate7 rials as the Commissioner determines appro8 priate. 

9 (B) REIMBURSEMENT OBLIGATION.—If 

10 after an audit of a condemning authority or ac11 quiring party, the Commissioner of Internal 

12 Revenue determines that the condemning au13 thority or acquiring party violated the terms of 

14 the certification required under paragraph (1), 

15 the condemning authority or acquiring party 

16 shall reimburse the Department of the Treasury 

17 for any funds— 

18 (i) received from any Federal agency; 

19 (ii) expended by the Secretary of the 

20 Treasury in conducting the audit; and 

21 (iii) together with interest, com22 pounded annually at a rate of 12 per cen23 tum, calculated from the date of disburse24 ment of such funds until the obligation has 

25 been repaid. 


cprice-sewell on PROD1PC71 with BILLS
18 

•S 48 IS

1 (C) AUDIT OF PRIOR PERIODS.—An audit 

2 conducted under this paragraph— 

3 (i) shall not be limited to the year in 

4 which a suspected violation of the terms of 

5 the certification required under paragraph 

6 (1) occurs; and 

7 (ii) may extend back to cover any year 

8 or years in the period beginning 10 years 

9 prior to the year such audit commences. 

10 (D) APPEAL.—The United States Court of 

11 Federal Claims shall have original and exclusive 

12 jurisdiction over any appeal by a condemning 

13 authority or acquiring party of any reimburse14 ment obligation imposed under subparagraph 

15 (B). 

16 SEC. 5. DENIAL OF TAX BENEFITS FOR TAKINGS NOT FOR 

17 THE PUBLIC USE. 

18 (a) FIFTH AMENDMENT PROPERTY PROTECTION

19 STATEMENT.— 

20 (1) IN GENERAL.—Upon receipt of a notice 

21 from a condemning authority which states the intent 

22 of the condemning authority to initiate an eminent 

23 domain proceeding against a real property interest 

24 of a property owner, any property owner who re25 ceives such notice may file a Fifth Amendment propVerDate Aug 31 2005 23:36 Jan 09, 2007 Jkt 059200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S48.IS S48

cprice-sewell on PROD1PC71 with BILLS
19 

•S 48 IS

1 erty protection statement (in this section referred to 

2 as a ‘‘PPS’’) with the appropriate State or local 

3 agency responsible for recording deeds, liens, or 

4 mortgages of real property in which the affected real 

5 property interest is located, provided that the prop6 erty owner files the PPS not later than 90 days 

7 after the receipt of such notice. 

8 (2) CONTENTS OF PPS.—Each PPS described 

9 in paragraph (1) shall state the basis on which the 

10 property owner believes that a condemning authority 

11 has exceeded its authority in exercising its eminent 

12 domain power to take or condemn the real property 

13 interest of the property owner, including by using or 

14 intending to use such taking or condemnation to cre15 ate an incidental economic benefit. 

16 (3) FILING COPY OF PPS WITH THE COMMIS17 SIONER OF INTERNAL REVENUE.—A property owner 

18 may submit a copy of each PPS such property 

19 owner filed under paragraph (1) to the Commis20 sioner of Internal Revenue. 

21 (4) VOLUNTARY RELEASE OF PPS.— 

22 (A) IN GENERAL.—A property owner, the 

23 personal representative of a property owner, the 

24 estate of a deceased property owner, or any 

25 qualified heir of a deceased property owner (as 


cprice-sewell on PROD1PC71 with BILLS
20 

•S 48 IS

1 such term is defined in section 2032A(e) of the 

2 Internal Revenue Code) may voluntarily file a 

3 document terminating a PPS with the appro4 priate State or local agency responsible for re5 cording, deeds, liens, or mortgages of real prop6 erty in which the affected real property interest 

7 is located. 

8 (B) EFFECT.—The effect of filing a termi9 nation of PPS under subparagraph (A) shall be 

10 to void such PPS. 

11 (5) INVOLUNTARY RELEASE OF PPS.— 

12 (A) IN GENERAL.—A condemning author13 ity may seek a judicial determination of the va14 lidity of any timely filed PPS in any State court 

15 having jurisdiction over takings or condemna16 tion proceedings in the State in which the af17 fected real property interest is located. 

18 (B) BURDEN OF PROOF.—In any case ini19 tiated under subparagraph (A), a condemning 

20 authority shall bear the burden of proof in dem21 onstrating that such taking or condemnation is 

22 not inconsistent with section 6(a). 

23 (C) FINAL ORDER.—Upon a final deter24 mination of any court described in subpara25 graph (A) that such taking or condemnation 


cprice-sewell on PROD1PC71 with BILLS
21 

•S 48 IS

1 does not violate section 6(a), the court may 

2 enter an order releasing the PPS. 

3 (6) FORM OF PPS.—The Secretary of the 

4 Treasury shall establish a uniform format for all 

5 PPS and releases of PPS to be used by property 

6 owners. 

7 (b) RULES OF CONSTRUCTION.— 

8 (1) IN GENERAL.—A PPS is intended to en9 hance the property protections afforded by the Fifth 

10 Amendment by permitting a property owner to take 

11 action to discourage those takings which are not in 

12 furtherance of either a public use or public purpose. 

13 (2) EFFECT OF PPS ON COMPENSATION AWARD

14 TO PROPERTY OWNER.—Any compensation awarded 

15 for a taking pursuant to the Fifth Amendment shall 

16 be made without regard to any PPS attaching to the 

17 property being taken. 

18 (3) ADDITIONAL EFFECTS OF A PPS.—A PPS 

19 shall— 

20 (A) attach to the real property interest 

21 which is described in the PPS; and 

22 (B) bind the current owner and all future 

23 owners, including successor in interests, as24 signs, or heirs, who at any time hold title to all 

25 or any portion of such real property interest. 


cprice-sewell on PROD1PC71 with BILLS
22 

•S 48 IS

1 (c) TAX EFFECTS OF PPS.—For a period of 20 years 

2 beginning on the January 1st immediately following the 

3 date of recording of any PPS, any acquiring party which 

4 acquires any real property interest which is subject to a 

5 PPS shall be prohibited from claiming any benefit, deduc6 tion, or tax credit related to any activities conducted with7 in the geographical boundaries comprising the jurisdiction 

8 of the condemning authority under the Internal Revenue 

9 Code of 1986, including the following: 

10 (1) Section 27 (relating to taxes of foreign 

11 countries and possessions of the United States; pos12 session tax credit). 

13 (2) Section 38 (relating to general business 

14 credits). 

15 (3) Section 39 (relating to carryback and 

16 carryforward of unused credits). 

17 (4) Section 40 (relating to alcohol used as a 

18 fuel). 

19 (5) Section 41 (relating to credit for increasing 

20 research activities). 

21 (6) Section 42 (relating to low-income housing 

22 credit). 

23 (7) Section 45 (relating to electricity produced 

24 from certain renewable resources). 


cprice-sewell on PROD1PC71 with BILLS
23 

•S 48 IS

1 (8) Section 45A (relating to Indian employment 

2 credit). 

3 (9) Section 45B (relating to credit for portion 

4 of employer social security taxes paid with respect to 

5 employee cash tips). 

6 (10) Section 45C (relating to clinical testing ex7 penses for certain drugs for rare diseases or condi8 tions). 

9 (11) Section 45D (relating to new markets tax 

10 credit). 

11 (12) Section 45E (relating to small employer 

12 pension plan startup costs). 

13 (13) Section 45F (relating to employer-provided 

14 child care credit). 

15 (14) Section 47 (relating to rehabilitation cred16 it). 

17 (15) Section 103 (relating to interest on State 

18 and local bonds). 

19 (16) Section 162 (relating to trade or business 

20 expenses). 

21 (17) Section 163 (relating to interest). 

22 (18) Section 164 (relating to taxes). 

23 (19) Sections 165 and 166 (relating to ordinary 

24 losses). 

25 (20) Section 167 (relating to depreciation). 


cprice-sewell on PROD1PC71 with BILLS
24 

•S 48 IS

1 (21) Section 169 (relating to amortization of 

2 pollution control facilities). 

3 (22) Section 172 (relating to net operating loss 

4 deduction). 

5 (23) Section 174 (relating to research and ex6 perimental expenditures). 

7 (24) Section 175 (relating to soil and water 

8 conservation expenditures). 

9 (25) Section 178 (relating to authorization of 

10 cost of acquiring a lease). 

11 (26) Section 179 (relating to election to expense 

12 certain depreciable business assets). 

13 (27) Sections 48(g) and 170(h) (relating to 

14 Federal Historic Preservation Tax Incentives). 

15 (28) Section 198 (relating to Brownfields Tax 

16 Incentives). 

17 (29) Sections 1201 through 1298 (relating to 

18 capital losses). 

19 (30) Section 1400F (relating to Renewal Com20 munities). 

21 (31) Sections 1391 through 1398 (relating to 

22 Empowerment Zones and Enterprise Communities 

23 Tax Incentives). 


cprice-sewell on PROD1PC71 with BILLS
25 

•S 48 IS

1 SEC. 6. PROTECTION OF PERSONAL PROPERTY RIGHTS. 

2 (a) GENERAL RULE.—No government shall engage 

3 or participate in a taking or condemnation of any private 

4 real property interest under the power of eminent domain 

5 for any purpose unless such taking or condemnation is ei6 ther a public purpose or a public use. 

7 (b) SCOPE OF APPLICATION.—This section applies in 

8 any case in which the exercise of eminent domain— 

9 (1) is by the Federal Government; 

10 (2) is related to a program or activity that re11 ceives Federal financial assistance; or 

12 (3) would affect, commerce with foreign na13 tions, among the several States, or with Indian 

14 tribes. 

15 SEC. 7. JUDICIAL RELIEF. 

16 (a) CAUSE OF ACTION.— 

17 (1) IN GENERAL.—A person may assert a viola18 tion of this Act as a claim or defense in a judicial 

19 proceeding and obtain appropriate relief against a 

20 government. 

21 (2) STANDING.—Standing to assert a claim or 

22 defense under paragraph (1) shall be governed by 

23 the general rules of standing under article III of the 

24 Constitution. 

25 (b) JURISDICTION.—Any pending action under which 

26 a government exercises its authority of eminent domain 


cprice-sewell on PROD1PC71 with BILLS
26 

•S 48 IS

1 shall not operate as a limit on a court from hearing any 

2 claim for relief under this Act. 

3 (c) BURDEN OF PERSUASION.—If a plaintiff pro4 duces prima facie evidence to support a claim alleging a 

5 violation of the Fifth Amendment takings clause or a vio6 lation of section 6, the government shall bear the burden 

7 of persuasion on any element of such claim. 

8 (d) FULL FAITH AND CREDIT.—Adjudication of a 

9 claim of a violation of this Act in a non-Federal forum 

10 shall not be entitled to full faith and credit in a Federal 

11 court unless the claimant had a full and fair adjudication 

12 of that claim in the non-Federal forum. 

13 (e) ATTORNEYS’ FEES.—Section 722(b) of the Re14 vised Statutes (42 U.S.C. 1988(b)) is amended by insert15 ing ‘‘the Private Property Rights Protection Act,’’ after 

16 ‘‘the Religious Land Use and Institutionalized Persons 

17 Act of 2000 (42 U.S.C. 2000cc et seq.),’’. 

18 (f) AUTHORITY OF UNITED STATES TO ENFORCE

19 THIS ACT.— 

20 (1) IN GENERAL.—The United States may 

21 bring an action for injunctive or declaratory relief to 

22 enforce compliance with this Act. 

23 (2) LIMITATION.—Nothing in this subsection 

24 shall be construed to deny, impair, or otherwise af25 fect any right or authority of the Attorney General, 


cprice-sewell on PROD1PC71 with BILLS
27 

•S 48 IS

1 the United States, or any agency, officer, or em2 ployee of the United States, acting under any law 

3 other than this subsection, to institute or intervene 

4 in any proceeding. 

5 SEC. 8. RULES OF CONSTRUCTION. 

6 (a) BROAD CONSTRUCTION.—This Act shall be con7 strued in favor of a broad protection of personal property 

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

9 this Act and the Constitution. 

10 (b) NO PREEMPTION OR REPEAL.—Nothing in this 

11 Act shall be construed to preempt State law, or repeal 

12 Federal law, that is equally as protective of personal prop13 erty rights as, or more protective of personal property 

14 rights than, this Act. 

15 (c) SEVERABILITY.—If any provision of this Act or 

16 of an amendment made by this Act, or any application 

17 of such provision to any person or circumstance, is held 

18 to be unconstitutional, the remainder of this Act, the 

19 amendments made by this Act, and the application of the 

20 provision to any other person or circumstance shall not 

21 be affected. 

Æ 


cprice-sewell on PROD1PC71 with BILLS