Condemnation of Private Property for Economic Development: Legal Comments on the House-Passed Bill (H.R. 4128) and Bond Amendment
Released: 2006-01-20T00:00:00

Introduction

On June 23, 2005, the Supreme Court handed down Kelo v. City of New London , (1) addressing whether, under theFifth Amendment Takings Clause, the sovereign power of eminent domain ("condemnation") canbe used to transfer private property to new private owners for the purpose of economicdevelopment. (2) The Courtheld 5-4 that the City of New London's use of private-to-private condemnations to further itseconomic revitalization project satisfied the Takings Clause's demand that eminent domain beemployed for a "public use," (3) despite the private nature of the transferees. The City's good-faithpurpose, said the majority, was to carry out a carefully considered areawide redevelopment planbelieved by the city (and state) to be needed to reverse decades of economic decline. On these facts,the majority deemed the public use requirement satisfied, especially given the strong deference owedby courts to legislative determinations of local needs.

Many observers argue that Kelo does not depart from established eminent domain law -- thatits view of public use as covering New London's revitalization plan is indistinguishable from priorCourt precedent sustaining eminent domain for mixed private and public gain. Contrariwise, a vocalminority (starting with the four dissenters) argues that the decision represents a major expansion ofpublic use, while still others counter that it actually narrows public use. For present purposes, thisdebate is unimportant. What matters here is that Kelo cast a bright spotlight on a controversial andincreasingly frequent practice: the use of private-to-private condemnation by state and localgovernments solely to increase tax base or tax revenues, and create jobs. The new attention givenby Kelo to the possibility that people's homes can be taken involuntarily for such purposes (uponpayment of compensation) provoked a popular outcry and media coverage such as few recentSupreme Court decisions have generated. Following Kelo , the majority of state legislatures saw theintroduction of, or talk of the introduction of, bills limiting the use of eminent domain. (4) Congress entered the fraythrough the introduction of roughly a dozen bills, most of them seeking to discourage state and localuse of eminent domain for economic development through the device of attaching restrictiveconditions on federal grant money. (5) The use of funding conditions, rather than a direct federalcommand that localities not condemn for economic development, presumably reflects theconstitutional federalism concerns raised by the latter approach under the Commerce Clause,Fourteenth Amendment (Section 5), and Tenth Amendment. (6)

The main topic of this report is the principal " Kelo bill" in Congress at this time, H.R. 4128 , the Private Property Protection Act of 2005. H.R. 4128 hews tothe prevalent congressional approach to Kelo : imposing a condemnation-restricting condition on thegrant of federal money. It was originally introduced as H.R. 3135 by RepresentativeSensenbrenner, chairman of the House Committee on the Judiciary, one week after the Kelo decision. It was reported in greatly expanded form as H.R. 4128 and passed the House376-38 on November 3, 2005.

This report also examines a bill amendment introduced by Senator Bond, like H.R. 4128 a federal-money-restricting provision. The Bond Amendment was added onthe Senate floor to H.R. 3058 , the Transportation, Treasury, Housing and UrbanDevelopment, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Actfor FY2006. H.R. 3058 was enacted November 30, 2005, as P.L. 109-115 , with the BondAmendment as Section 726.

Other bills and resolutions responding to the Kelo decision are not treated here, eitherbecause they have been eclipsed by H.R. 4128 , have seen little activity, or arenonbinding resolutions. These include S. 1313 (restricting federal funds), S. 1704 (restricting federal funds), S. 1883 (creating an Office of PropertyRights Ombudsperson), S. 1895 (restricting federal funds and eliminating tax benefitsfor private parties acquiring property), H.J.Res. 60 (amending the Constitution), H.Res. 340 (expressing disagreement with the majority opinion in Kelo ; passed Houseon June 30, 2005 by 365-33), H.R. 3083 and 3087 (each identical to S. 1313), H.R. 3315 (restricting federal funds), H.R. 3631 (restricting federalassistance), H.R. 3405 (restricting federal funds), and H.R. 4088 (restricting federal funds).

H.R. 4128

What the Bill Says

Section 2: The Heart of the Bill. The keyprovisions in H.R. 4128 are Sections 2(a) and 2(b). Section 2(a) sets out the state andlocal activities that the bill prohibits --

No State or political subdivision of a State shall exerciseits power of eminent domain, or allow the exercise of such power by any person or entity to whichsuch power has been delegated, over property to be used for economic development or over propertythat is subsequently used for economic development, if that State received Federal economicdevelopment funds during any fiscal year in which it does so.

Section 2(b) states a consequence under the bill when a state or local government violates Section2(a) --

A violation of subsection (a) by a State or politicalsubdivision shall render such State or political subdivision ineligible for any Federal economicdevelopment funds for a period of 2 fiscal years following a final judgment on the merits by a courtof competent jurisdiction that such subsection has been violated ....

Under Section 2(c), the Section 2(b) ineligibility period is terminated if the offending state or localityelects to return all real property the taking of which was judicially determined to offend Section2(a). (7)

Section 3 of the bill is the federal-condemnation counterpart to Section 2, barring federalagencies from using eminent domain for economic development. Section 3, however, is much lessimportant than Section 2; at least as defined in the bill, federal condemnation for economicdevelopment is rare.

Section 8: Definitions. Section 8 determineswhich government condemnations are prohibited by Sections 2(a) and 3 above through its definitionof "economic development." Given the huge variety of purposes for which eminent domain is usedaround the country, crafting such a definition is a difficult task, attempted by many of the Kelo billsin Congress. In Section 8's version, economic development means "taking private property, withoutthe consent of the owner, and conveying or leasing such property from one private person or entityto another private person or entity for commercial enterprise carried on for profit, or to increase taxrevenue, tax base, employment, or general economic health." Seven exemption categories are stated. The first allows the conveyance of private property to public ownership or an entity that makes theproperty available to the general public as of right (e.g., common carriers), or for use as a road orother right of way open to the public. Other categorical exemptions include removing harmful usesof land that constitute an immediate threat to public health or safety, acquiring abandoned property,clearing defective chains of title, use by a public utility, and redeveloping brownfields.

The bill uses the words "economic development" in a second context in addition to Section2(a). The phrase "Federal economic development funds" in Section 2(b) defines which federalmonies are to be suspended should a court find that prohibited condemnations have occurred. Notwithstanding the word overlap, the bill defines the Section 2(b) phrase in completely differentlanguage than it uses for the Section 2(a) phrase. "Federal economic development funds," accordingto Section 8(2), are those federal monies distributed to or through states or their politicalsubdivisions "under Federal laws designed to improve or increase the size of [their] economies ...." The Attorney General is charged under Section 5(a)(2) with compiling a list of such federal laws,to delineate the particular federal funds that must be suspended in the event of Section 2(a)transgressions. (8)

Section 4: Private Right of Action. Section 4gives the bill an enforcement mechanism in the form of a private right to sue. A property owner"who suffers injury as a result of a violation of any provision of this Act may bring an action toenforce any provision of this act in the appropriate Federal or State court ...." Unlike the typical suit,where the plaintiff has the burden of showing the elements of the cause of action, H.R. 4128 shifts the burden of proof to the defendant government "to show by clear and convincingevidence that the taking is not for economic development." Any such suit must be brought withina prescribed time window -- namely, after the condemnation and the property's subsequent use foreconomic development, but before seven years following such economic-development use. (But see"Legal Comments on Section 4," infra, on the possibility that Section 4 also allows suits before andduring an improper condemnation as well.)

Prevailing plaintiffs are to be awarded attorneys' fees; no comparable provision is includedfor prevailing government defendants.

Other Bill Provisions. Other bill provisions areas follows. Section 13 is a counterpart to Section 2(a) and 2(b) for the specific case where propertyof religious and nonprofit organizations is condemned. In the case of Section 13, condemnationtriggers a funds cut-off if the condemnation occurs "by reason of the non-profit or tax-exempt statusof such organization." This may be a rough analog to the prohibited "economic development"purpose in Section 2. House Judiciary Committee proceedings make clear that the inclusion ofSection 13 was motivated by a belief on the part of committee Members that because religious andnonprofit organizations pay no or fewer taxes, they are tempting condemnation targets for municipalofficials looking to increase tax revenue. (9)

Section 11 commands that the bill "be construed in favor of a broad protection of privateproperty rights ...." In the same spirit but less substantively, Section 10 declares that "[i]t is thepolicy of the United States to encourage ... the private ownership of property ...," and Section 7expresses the sense of Congress that the use of eminent domain for economic development is a threatto agricultural and other property in rural America.

Finally, Section 9(b) instructs that the bill, if enacted, applies prospectively only: it takeseffect in the fiscal year that begins after the date of enactment, and does not apply to projects forwhich condemnation has been initiated before enactment.

Legal Comments on Section 2

Delegatees. Section 2(a)'s prohibition on condemnations for, or followed by, economicdevelopment explicitly reaches not only condemnations by states or their political subdivisions, butalso those by entities to which eminent domain power has been delegated by states and politicalsubdivisions. The inclusion of delegatees, public or private, presumably reflects the fact thateconomic-development condemnations are often carried out not by the state or local governmentitself, but by government-created non-profit entities created to implement the project (as in the Kelo case).

Absence of Time Limit. The Section-2(a) phrase "subsequently used for economicdevelopment" appears to have no outer time limit. This omission raises the possibility that while aparcel was initially condemned in good faith for a non-economic-development purpose (as definedin the bill), its use many years or even decades later for economic development due to unforeseenchange in the law, policy priorities, or funding availability would trigger loss of federal funds perSection 2(b). (10) Bearin mind here, as elsewhere in the bill, the broad-construction mandate of Section 11 favoring privateproperty rights. To avoid a funds cut-off, the condemnor government would have to return theproperty, a problematic option after the condemnee has moved -- see discussion of Section 2(c)below.

Absence of Nexus and Proportionality Requirements. The plain meaning of Section 2(b)is that the suspended federal economic development funds need not be connected in any way to theeconomic development project at which the offending condemnation took place. Indeed, the projectneed not be slated to receive federal economic development funds at all. Nor would it appear tomatter how many or how significant the offending condemnations: the condemnation and economicdevelopment of a single, small tract of land triggers the two-year funds cut-off every bit aseffectively as a jurisdiction-wide pattern of using condemnation for economic development.

Spending Power and Necessary and Proper Clause . At first blush, H.R. 4128 appears to be an exercise of Congress's Spending Power, (11) under which it is well-established that Congress may attachconditions to the grant of federal money so as to induce the recipients to cooperate voluntarily withfederal policy. (12) Anddoubtless, many of the Kelo bills in Congress are straightforward exercises of this power -- federalmoney available to the state or locality is made subject to some condition that there be nocondemnation for economic development. If such condemnation is planned or actually occurs, the same money cannot be transferred.

H.R. 4128 takes a fundamentally different tack. The funds granted during theyear in which the offending condemnations take place are not themselves at risk. Rather, the fundscome with a condition that if a violative condemnation occurs during the same fiscal year as themoney is received, other federal monies are blocked -- namely, economic development funds for thetwo fiscal years after a court discerns the prohibited condemnation. This shift from loss of theconditioned money to loss of separate funds means that the constitutional basis of H.R.4128 arguably is not the Spending Clause alone, but rather the Spending Clause togetherwith Congress's authority under the Necessary and Proper Clause. (13) That Clause has beenconstrued to empower Congress "to see to it that taxpayer dollars appropriated under [the SpendingPower] are in fact spent for the general welfare ...." (14)

As either an exercise of the Spending Power alone or the Spending Power and Necessary andProper Clause in combination, a discussion of the constitutional limits on Congress's use of fundingconditions is relevant. One such limit is that the condition must be related to the federal interest forwhich the funds are expended. (15) This prerequisite has been little explicated by the Court and aspending condition has yet to be found deficient because of it. Because H.R. 4128 punishes condemnation for economic development by cutting off only funds promoting economicdevelopment, it would seem to pass this amorphous test. (16)

Whether a second (possible) constraint on Spending Power conditions is satisfied by H.R. 4128 is a closer question. The Supreme Court has suggested that in somecircumstances the financial inducement created by Congress might be so coercive as to pass the pointat which "pressure turns into compulsion" (17) -- though once again the Court has never found a congressionalcondition to violate this criterion. It is conceivable that the threat of a two-year cut-off of millionsof dollars under many federal programs, triggered by condemnation of a single, small property laterused for economic development, could be viewed as such unacceptable compulsion. (18) Certainly H.R.4128 presents a sharp contrast to some of the other Kelo bills in Congress, which terminateonly those funds destined for the particular project at which the offending condemnation took place. The bill contrasts sharply as well with the facts in the leading Supreme Court decision on SpendingPower conditions, upholding Congress's creation of "relatively mild encouragement" to the States-- loss of a"relatively small percentage of certain federal highway funds" -- to enact a higherminimum drinking age. (19) Again, however, any such compulsion test is only suggested inthe Court's decisions, and is of poorly understood content.

Returning the Condemned Property. Section 2(c), allowing the offending condemnor toreturn the property and thereby end the funds cut-off, does not explicitly state that the condemneehas to return the money received for the property. Such a reimbursement requirement is arguablyimplied, however, possibly including interest, since the bill otherwise would allow unjust enrichmentof the condemnee at the government's expense.

Assuming a reimbursement requirement, another issue arises: some condemnees might notwant their property back, having long since moved somewhere else, spent the compensation on anew home, and settled in. Under a literal reading of Section 2(c), which requires that the state orpolitical subdivision "return[] all real property" to restore federal funding, such a refusal by thecondemnee forecloses the condemnor's use of Section 2(c). Query whether a court would read"returns all real property" more liberally to include bona fide return offers by the condemnorgovernment that are rejected by the former property owner.

Legal Comments on Section 8

Entities Open to the Public "As of Right." Section 8(1) defines "economic development,"the prohibited condemnation purpose under the bill, but exempts "an entity, such as a commoncarrier, that makes the property available to the general public as of right, such as a railroad or publicfacility." In committee markup, the question whether this exemption includes sports stadiums andshopping centers was debated at length. (20) Representative Nadler argued that it does. In response,Representative Goodlatte contended that shopping centers and private stadiums are not within theexemption because they are not open to the public "as of right," but that public stadiums might verywell be.

"Removing Harmful Uses." Section 8(1) offers another exemption from "economicdevelopment" for "removing harmful uses of land provided such uses constitute an immediate threatto public health and safety." The "immediate threat" qualifier is of interest, because as the followingparagraph argues, it seems to extend H.R. 4128 well beyond the sort of economicdevelopment project involved in Kelo .

One of the leading Supreme Court precedents leading up to Kelo is Berman v. Parker , (21) holding thatprivate-to-private condemnation for blight-removal redevelopment is a public use. Another leading Kelo precedent is Hawaii v. Midkiff , (22) where the Court found a public use in a Hawaii statute allowingprivate-to-private condemnation to alleviate the economic harms of highly concentrated landownership. In Kelo , Justice O'Connor's four-justice dissent explicitly left these precedents intact. While private-to-private condemnation for economic development as in Kelo was constitutionallyobjectionable, she wrote, the elimination of property uses that "inflict[] affirmative harm on society,"as the urban blight in Berman and concentrated land ownership in Hawaii , was a legitimate publicuse. As noted above, however, Section 8(1)(B) does not exempt use of condemnation to remove any harmful property use, but only those involving an immediate threat. Thus, it seems H.R. 4128 would punish certain private-to-private condemnations that Justice O'Connor and her fellowdissenters would find unobjectionable.

The "immediate threat" qualifier may serve to discourage the use of eminent domain forredevelopment in cases of marginal, even moderate, blight. Accusations in the literature arecommon that the term "blight" is construed overly expansively by localities to further economicdevelopment, and is often applied to neighborhoods not exhibiting the classic blight-related ills ofdilapidated structures, crime, drugs, etc. (23) In these milder instances of blight, an "immediate threat" maynot be judicially deemed present, with the result that a condemnation might trigger suspension offederal funds under the bill. And, the interpretational latitude in a vague term such as immediatethreat, combined with the serious funding consequence if a jurisdiction guesses wrong, likely woulddeter condemnations in a wide grey area of moderate blight as well.

Condemnations and Projects with Multiple Objectives. It often happens that acondemnation, or the project it serves, aims at more than one goal -- e.g., both increasing tax revenueand removing a harmful use of property. Query whether a mixed-purpose condemnation constitutes"economic development" for purposes of the bill if some of its purposes fall within the bill'sdefinition of economic development and others do not.

Legal Comments on Section 4

Owners Only . Section 4, creating a private right of action to enforce the bill, applies by itsterms only to owners of property, not lessees (renters). But displaced lessees could still, likedisplaced owners, receive compensation under the Takings Clause of the Constitution, plus movingexpenses and replacement housing costs under the Uniform Relocation Act (24) or its state-enactedcounterparts.

Third Parties . Section 4 makes its right of action available to "[a]ny owner of privateproperty who suffers injury as a result of a violation of any provision of this Act ...." This languagemight lead one to think that the right of action can be asserted not only by the condemnee, but bythird parties, such as a property-owner neighbor whose property value tumbles ("suffers injury")when the prohibited condemnation for economic development results in a big-box retailer next door. Coverage of third parties is undercut, however, by subsequent language in Section 4 stating that suchactions are to "follow[] the conclusion of any condemnation proceedings condemning the privateproperty of such owner ." (25)

Remedies Available. Does Section 4 allow a court to enjoin an improper condemnationbefore or during the condemnation proceeding, in addition to suspending federal funds afterwards? The sounder argument, based on it seems, is that it does not. Section 4(b), which forecloses suitsuntil "the property is used for economic development following the conclusion of any condemnationproceedings," is best read as applying to all actions under Section 4. (26) If the action cannot befiled until the conclusion of the condemnation proceeding and subsequent economic use, plainly itcannot be used to prevent the condemnation from happening -- nor, as a practical matter, to undo itafter the fact.

The dual-remedy reading cannot be completely discounted, however. Section 4(b) says thatan action "may be brought" if the property is used for economic development after the condemnation,not that such action "may only be brought" at that time. Arguably, this suggests that Section 4(b)speaks to a different type of private right of action than Section 4(a) -- one following thecondemnation, seeking a funds cut-off -- leaving 4(a) as the authority for injunctive actions before,during, or soon after the condemnation, aimed at thwarting or undoing it. And again, Section 11calls for the bill to be construed in favor of broad property rights protection.

There appears to be no authorization in the bill for a damages (money paid to the plaintiff)remedy. Further, it might be contended that Section 2(c)'s "opportunity" for states and localities tocure the violation by returning the real property (27) is only that, a choice to be made by the state or locality in its solediscretion. That is, return of the real property (assuming the displaced property owner wishes to buyit back) probably cannot be compelled by a court.

If the foregoing arguments are correct, then the only remedy available in a Section 4 action(for non-federal condemnations) is for the court to order the two-year cut-off, and return of anyfederal funds mistakenly granted during this period.

Standing to Sue . As to the remedy of blocking federal funds to the offending jurisdictionand mandating reimbursement of improperly disbursed funds, Section 4 raises a constitutionalquestion. Does the plaintiff seeking such remedy satisfy the standing to sue requirements derivedfrom Article III of the Constitution? As the Supreme Court explains, the Article III "case" or"controversy" prerequisite for invoking the federal judicial power means that to establish standing,a plaintiff must show

(1) it has suffered an "injury in fact" that is (a) concreteand particularized and (b) actual or imminent ... ; (2) the injury is fairly traceable to the challengedaction of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will beredressed by a favorable decision. (28)

Section 4 plaintiffs seeking funds termination plainly meet the "injury in fact" requirement (theyhave been forced to move, and possibly have uncompensated costs) and traceability requirement(being forced to move was caused by the challenged condemnation by the defendant). But whetherredressability is satisfied is more doubtful. Obviously a funds cut-off does not of itself redress theinjury that the plaintiff has suffered. But query whether redressability would be satisfied if the fundscut-off greatly increases the likelihood that the condemnor government will elect to return theproperty, pursuant to Section 2(c).

Eleventh Amendment/State Sovereign Immunity. The Eleventh Amendment (29) bars private actions againstunconsenting states in either federal or state court, with exceptions for congressional abrogationunder the Fourteenth Amendment Section 5 and prospective injunctions against state officials. (30) The issue is whether theAmendment is an impediment to suits against states under Section 4.

As a threshold matter, the Eleventh Amendment does not apply to political subdivisions ofstates. (31) Thus theAmendment is not implicated in most economic-development condemnations, done as they are bypolitical subdivisions or their delegatees. In this connection, we read bill Section 2(a) to mean thatwhen a political subdivision or its delegatee violates Section 2(a), the ineligibility for federal fundsimposed by Section 2(b) is visited exclusively upon the political subdivision, not the state.

As for suits against states, Section 4 pronounces that "a state shall not be immune under theeleventh amendment ... from any [action under Section 4] in a Federal or State court of competentjurisdiction." The question is whether this language is adequate to effect a state waiver of EleventhAmendment immunity by virtue of the state's acceptance of federal economic development fundsfollowing the bill's enactment. The answer appears to be yes: the Supreme Court in dicta, and amajority of the federal circuits in holdings, have interpreted nearly identical language in anotherfederal statute to be sufficient to waive state sovereign immunity upon state acceptance of federalfunds. (32)

Legal Comments on Section 3

The Section 3 prohibition on federal condemnations for economic development raises issuesdistinct from those in the state/political subdivision sections of the bill. For one thing, the Section3 prohibition arguably covers only condemnations with the direct purpose of economicdevelopment. Recall that Section 2's prohibition on states and political subdivisions applies not onlyto the use of eminent domain "over property to be used for economic development," but also "overproperty subsequently used for economic development." (33) Given that Section 3, a provision of the same bill, omits the latterphrase, the presumption arises that Congress had a narrower vision for Section 3. If so, this relievesthe United States of concern that should it in the future use eminent domain to assemble tracts ofland for a federal facility (such as a military base), the property upon termination of federal use maybe conveyed to private owners without running afoul of the bill. (34)

A second issue is what remedies are available when a federal agency violates Section 3. Thefunds cut-off in Section 2 applies only to states and political subdivisions. If one takes the view (see"Legal comments on Section 4" section) that a Section 4 claim can only be brought after thecondemnation has occurred, an injunction against the improper federal condemnation is ruled out. Perhaps the lack of an explicit remedy in the bill for federal violations would be judicially viewedas giving courts leeway to fashion equitable remedies against the offending federal condemnor.

The Bond Amendment

The Bond Amendment to the Transportation, Treasury, Housing and Urban Development,the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act for FY2006is now enacted law: P.L. 109-115 , Section 726. Its full text states --

No funds in this Act may be used to support any federal,state, or local projects that seek to use the power of eminent domain, unless eminent domain isemployed only for a public use:

Provided, That for purposes of this section, public useshall not be construed to include economic development that primarily benefits privateentities:

Provided further, That any use of funds for mass transit,railroad, airport, seaport, or highway projects as well as utility projects which benefit or serve thegeneral public (including energy-related, communication-related, water-related andwastewater-related infrastructure), other structures designated for use by the general public or whichhave other common-carrier or public-utility functions that serve the general public and are subjectto regulation and oversight by the government, and projects for the removal of an immediate threatto public health and safety or brownsfield (35) as defined in the Small Business Liability Relief andBrownsfield (36) Revitalization Act (Public Law 107-118) shall be considered a public use for purposes of eminentdomain:

Provided further, That the Government AccountabilityOffice ... shall conduct a study to be submitted to the Congress within 12 months of the enactmentof this Act on the nationwide use of eminent domain, including the procedures used and the resultsaccomplished on a state-by-state basis as well as the impact on individual property owners and onthe affected communities.

By its reference to "funds in this Act," the Bond Amendment limits itself to federal monies used ordisbursed by the agencies receiving appropriations under the statute, and applies only to FY2006funds.

The second paragraph of the Amendment, excluding from public use instances of economicdevelopment that "primarily" benefits private entities, is a rough paraphrase of the often-stated rulethat condemnations producing private benefits constitute a "public use" only if the private benefitis merely incidental or secondary to a primary public purpose. (37) Some condemnationdecisions, however, declare or suggest a broader view of public use -- namely, that even projects primarily benefitting private entities can be deemed for a public use, as long as there is some publicbenefit. (38) SupremeCourt decisions, too, suggest such a broad view of public use -- stating that condemnation not be solely for a private use and be "rationally related to a conceivable public purpose." (39) Within the ambit of theAmendment, the second paragraph makes clear that the former and narrower of these public usestandards applies.

The third paragraph of the Amendment, declaring various projects to be public uses underthe Amendment, conforms closely to existing Takings Clause jurisprudence as to what constitutesa public use. Particularly is this so because the paragraph uses the descriptors "benefit or serve thegeneral public," "designated for use by the general public," and "serve the general public" -- echoingthe Supreme Court's modern reading of constitutional public use as meaning "for a publicpurpose." (40) Many ofthe listed items are facilities to which the public has physical access, satisfying even the narrow,nineteenth century sense of public use under which condemnation into private ownership requiredthat the public still have physical access to the property. Two other items listed in the thirdparagraph, removal of immediate threats to public health and safety and removal of brownfields,plainly would constitute a public use.

The phrase "immediate threat to public health and safety" in the third paragraph replaced"blight (including areas identified by units of local government for recovery from natural disasters)"in the introduced version of the Amendment. Very likely, the switch was made to align the BondAmendment with the same "immediate threat to public health and safety" phrase in H.R. 4128 's list of exceptions from its definition of "economic development." It mayalso, as in H.R. 4128, reflect congressional concerns as to overuse of blight-removaljustifications for local redevelopment involving condemnations. (41)

The list of non-public uses in the second paragraph, and public uses in the third, would eachappear to be nonexhaustive. So what criterion as to public-use status applies to non-listedcondemnation purposes? One candidate is that in Takings Clause case law. Applying this criterion,however, the switch from "blight" to "immediate threat to public health and safety" may haveachieved little as to blight, since blight removal has been broadly endorsed as a constitutional publicuse by the Supreme Court, apparently irrespective of whether it constitutes an immediate threat topublic health and safety. (42) On the other hand, the criterion for non-listed condemnationpurposes might be statutory. Under this criterion, the fact of the language change from "blight" to"immediate threat ..." could ground an argument that removal of lesser degrees of blight are notpublic uses pursuant to the Amendment.

Whatever the parallels between the Amendment's itemized public uses and non-public useand those of Takings Clause case law, the Amendment clearly works a change in the law by addingthe funding prohibition. Under pre-existing law, the judicial invalidation of a state or localcondemnation as not for a public use did not require a cut-off of federal funding for the associatedproject. This change effected by the Bond Amendment is enhanced in importance if the firstparagraph is construed broadly to trigger a funds cut-off when eminent domain is used for other thana public use anywhere in the jurisdiction, rather than solely as part of the project in question.

The final paragraph of the Bond Amendment calls for a GAO study "on the nationwide useof eminent domain ...." By its literal terms, this mandate is of expansive scope: it includes federal,state, and local condemnations, and is not limited to, or even specially focused on, the Kelo issueof condemnation for economic development. Senator Bond's statement on introducing theAmendment, however, does suggest such a constrained focus for the report, dwelling as it doesexclusively on Kelo and similar circumstances. (43) Similarly, the Senator's statement implies that report coverageof inverse condemnation, literally included in the term "eminent domain," was not intended. (44)