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109th Congress                                            Rept. 109-262
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 2

======================================================================



 
             PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2005

                                _______
                                

November 3, 2005.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                          SUPPLEMENTAL REPORT

                             together with

                    ADDITIONAL AND DISSENTING VIEWS

                        [To accompany H.R. 4128]

      [Including cost estimate of the Congressional Budget Office]

  This supplemental report shows the markup transcript with 
respect to the bill (H.R. 4128), as reported, which was not 
included in part 1 of the report submitted by the Committee on 
the Judiciary on October 31, 2005 (H. Rept. 109-262, pt. 1).

  Due to the brief period of time between the markup and floor 
consideration of H.R. 4128, the transcript was unavailable for 
inclusion in H. Rept. 109-262, Part 1. Chairman Sensenbrenner 
has long maintained that the inclusion of the markup transcript 
in the Committee report provides important public insight into 
Committee consideration of legislation reported to the full 
House. To that end, the Committee is filing a supplemental 
report to H.R. 4128 to ensure that the Committee's markup 
transcript is available in the public record.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     4
Background.......................................................     4
Hearings.........................................................    13
Committee Consideration..........................................    13
Vote of the Committee............................................    13
Committee Oversight Findings.....................................    15
New Budget Authority and Tax Expenditures........................    15
Congressional Budget Office Cost Estimate........................    15
Performance Goals and Objectives.................................    16
Constitutional Authority Statement...............................    17
Section-by-Section Analysis and Discussion.......................    17
Changes in Existing Law Made by the Bill, as Reported............    20
Markup Transcript................................................    20
Additional Concurring Views......................................    79
Dissenting Views.................................................    81

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Private Property Rights Protection Act 
of 2005''.

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

  (a) In General.--No State or political subdivision of a State shall 
exercise its power of eminent domain, or allow the exercise of such 
power by any person or entity to which such power has been delegated, 
over property to be used for economic development or over property that 
is subsequently used for economic development, if that State or 
political subdivision receives Federal economic development funds 
during any fiscal year in which it does so.
  (b) Ineligibility for Federal Funds.--A violation of subsection (a) 
by a State or political subdivision shall render such State or 
political subdivision ineligible for any Federal economic development 
funds for a period of 2 fiscal years following a final judgment on the 
merits by a court of competent jurisdiction that such subsection has 
been violated, and any Federal agency charged with distributing those 
funds shall withhold them for such 2-year period, and any such funds 
distributed to such State or political subdivision shall be returned or 
reimbursed by such State or political subdivision to the appropriate 
Federal agency or authority of the Federal Government, or component 
thereof.
  (c) Opportunity to Cure Violation.--A State or political subdivision 
shall not be ineligible for any Federal economic development funds 
under subsection (b) if such State or political subdivision returns all 
real property the taking of which was found by a court of competent 
jurisdiction to have constituted a violation of subsection (a) and 
replaces any other property destroyed and repairs any other property 
damaged as a result of such violation.

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

  The Federal Government or any authority of the Federal Government 
shall not exercise its power of eminent domain to be used for economic 
development.

SEC. 4. PRIVATE RIGHT OF ACTION.

  (a) Cause of Action.--Any owner of private property who suffers 
injury as a result of a violation of any provision of this Act may 
bring an action to enforce any provision of this Act in the appropriate 
Federal or State court, and a State shall not be immune under the 
eleventh amendment to the Constitution of the United States from any 
such action in a Federal or State court of competent jurisdiction. Any 
such property owner may also seek any appropriate relief through a 
preliminary injunction or a temporary restraining order.
  (b) Limitation on Bringing Action.--An action brought under this Act 
may be brought if the property is used for economic development 
following the conclusion of any condemnation proceedings condemning the 
private property of such property owner, but shall not be brought later 
than seven years following the conclusion of any such proceedings and 
the subsequent use of such condemned property for economic development.
  (c) Attorneys' Fee and Other Costs.--In any action or proceeding 
under this Act, the court shall allow a prevailing plaintiff a 
reasonable attorneys' fee as part of the costs, and include expert fees 
as part of the attorneys' fee.

SEC. 5. NOTIFICATION BY ATTORNEY GENERAL.

  (a) Notification to States and Political Subdivisions.--
          (1) Not later than 30 days after the enactment of this Act, 
        the Attorney General shall provide to the chief executive 
        officer of each State the text of this Act and a description of 
        the rights of property owners under this Act.
          (2) Not later than 120 days after the enactment of this Act, 
        the Attorney General shall compile a list of the Federal laws 
        under which Federal economic development funds are distributed. 
        The Attorney General shall compile annual revisions of such 
        list as necessary. Such list and any successive revisions of 
        such list shall be communicated by the Attorney General to the 
        chief executive officer of each State and also made available 
        on the Internet website maintained by the United States 
        Department of Justice for use by the public and by the 
        authorities in each State and political subdivisions of each 
        State empowered to take private property and convert it to 
        public use subject to just compensation for the taking.
  (b) Notification to Property Owners.--Not later than 30 days after 
the enactment of this Act, the Attorney General shall publish in the 
Federal Register and make available on the Internet website maintained 
by the United States Department of Justice a notice containing the text 
of this Act and a description of the rights of property owners under 
this Act.

SEC. 6. REPORT.

  Not later than 1 year after the date of enactment of this Act, and 
every subsequent year thereafter, the Attorney General shall transmit a 
report identifying States or political subdivisions that have used 
eminent domain in violation of this Act to the Chairman and Ranking 
Member of the Committee on the Judiciary of the House of 
Representatives and to the Chairman and Ranking Member of the Committee 
on the Judiciary of the Senate. The report shall--
          (1) identify all private rights of action brought as a result 
        of a State's or political subdivision's violation of this Act;
          (2) identify all States or political subdivisions that have 
        lost Federal economic development funds as a result of a 
        violation of this Act, as well as describe the type and amount 
        of Federal economic development funds lost in each State or 
        political subdivision and the Agency that is responsible for 
        withholding such funds;
          (3) discuss all instances in which a State or political 
        subdivision has cured a violation as described in section 2(c) 
        of this Act.

SEC. 7. SENSE OF CONGRESS REGARDING RURAL AMERICA.

  (a) Findings.--The Congress finds the following:
          (1) The founders realized the fundamental importance of 
        property rights when they codified the Takings Clause of the 
        Fifth Amendment to the Constitution, which requires that 
        private property shall not be taken ``for public use, without 
        just compensation''.
          (2) Rural lands are unique in that they are not traditionally 
        considered high tax revenue-generating properties for state and 
        local governments. In addition, farmland and forest land owners 
        need to have long-term certainty regarding their property 
        rights in order to make the investment decisions to commit land 
        to these uses.
          (3) Ownership rights in rural land are fundamental building 
        blocks for our Nation's agriculture industry, which continues 
        to be one of the most important economic sectors of our 
        economy.
          (4) In the wake of the Supreme Court's decision in Kelo v. 
        City of New London, abuse of eminent domain is a threat to the 
        property rights of all private property owners, including rural 
        land owners.
  (b) Sense of Congress.--It is the sense of Congress that the use of 
eminent domain for the purpose of economic development is a threat to 
agricultural and other property in rural America and that the Congress 
should protect the property rights of Americans, including those who 
reside in rural areas. Property rights are central to liberty in this 
country and to our economy. The use of eminent domain to take farmland 
and other rural property for economic development threatens liberty, 
rural economies, and the economy of the United States. Americans should 
not have to fear the government's taking their homes, farms, or 
businesses to give to other persons. Governments should not abuse the 
power of eminent domain to force rural property owners from their land 
in order to develop rural land into industrial and commercial property. 
Congress has a duty to protect the property rights of rural Americans 
in the face of eminent domain abuse.

SEC. 8. DEFINITIONS.

  In this Act the following definitions apply:
          (1) Economic development.--The term ``economic development'' 
        means taking private property, without the consent of the 
        owner, and conveying or leasing such property from one private 
        person or entity to another private person or entity for 
        commercial enterprise carried on for profit, or to increase tax 
        revenue, tax base, employment, or general economic health, 
        except that such term shall not include--
                  (A) conveying private property to public ownership, 
                such as for a road, hospital, or military base, or to 
                an entity, such as a common carrier, that makes the 
                property available for use by the general public as of 
                right, such as a railroad, or public facility, or for 
                use as a right of way, aqueduct, pipeline, or similar 
                use;
                  (B) removing harmful uses of land provided such uses 
                constitute an immediate threat to public health and 
                safety;
                  (C) leasing property to a private person or entity 
                that occupies an incidental part of public property or 
                a public facility, such as a retail establishment on 
                the ground floor of a public building;
                  (D) acquiring abandoned property;
                  (E) clearing defective chains of title; and
                  (F) taking private property for use by a public 
                utility.
          (2) Federal economic development funds.--The term ``Federal 
        economic development funds'' means any Federal funds 
        distributed to or through States or political subdivisions of 
        States under Federal laws designed to improve or increase the 
        size of the economies of States or political subdivisions of 
        States.
          (3) State.--The term ``State'' means each of the several 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, or any other territory or possession of the United 
        States.

SEC. 9. SEVERABILITY AND EFFECTIVE DATE.

  (a) Severability.--The provisions of this Act are severable. If any 
provision of this Act, or any application thereof, is found 
unconstitutional, that finding shall not affect any provision or 
application of the Act not so adjudicated.
  (b) Effective Date.--This Act shall take effect upon the first day of 
the first fiscal year that begins after the date of the enactment of 
this Act, but shall not apply to any project for which condemnation 
proceedings have been initiated prior to the date of enactment.

SEC. 10. SENSE OF CONGRESS.

  It is the policy of the United States to encourage, support, and 
promote the private ownership of property and to ensure that the 
constitutional and other legal rights of private property owners are 
protected by the Federal Government.

SEC. 11. BROAD CONSTRUCTION.

  This Act shall be construed in favor of a broad protection of private 
property rights, to the maximum extent permitted by the terms of this 
Act and the Constitution.

                          Purpose and Summary

    The purpose of H.R. 4128, the ``Private Property Rights 
Protection Act of 2005,'' is to preserve the property rights 
granted to our Nation's citizens under the Fifth Amendment of 
the Constitution following the Supreme Court's decision in Kelo 
v. City of New London.

                               Background

The fundamental importance of private property rights
    The protection of private property rights lies at the 
foundation of American government. As James Madison wrote in 
the Federalist Papers, ``[G]overnment is instituted no less for 
the protection of property than of the persons of 
individuals.'' \1\
---------------------------------------------------------------------------
    \1\ The Federalist No. 54, at 370 (Jacob E. Cooke ed., 1961) (James 
Madison) see also James Madison, Property, National Gazette (Mar. 27, 
1792), reprinted in 14 The Papers of James Madison 266 (Robert Rutland, 
et al. eds., 1983) (``Government is instituted to protect property of 
every sort * * * This being the end of government, that alone is a just 
government, which impartially secures to every man, whatever is his 
own.'').
---------------------------------------------------------------------------
    In 1795, the Supreme Court clearly articulated our 
citizens' fundamental right to private property under the 
Constitution when it declared: ``possessing property, and 
having it protected, is one of the natural, inherent, and 
unalienable rights of man.  * * *'' \2\ And as Justice Story 
explained years later, ``That government can scarcely be deemed 
to be free, where the rights of property are left solely 
dependent upon the will of a legislative body, without any 
restraint. The fundamental maxims of a free government seem to 
require; that the rights of personal liberty and private 
property, should be held sacred.'' \3\
---------------------------------------------------------------------------
    \2\ Vanhorne's Lessee v. Dorrance, 2 U.S. 304, 310 (1795).
    \3\ Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 657 (1829).
---------------------------------------------------------------------------
    President Abraham Lincoln often spoke of how at the heart 
of the evil practice of slavery was a denial of property 
rights: ``It is the same tyrannical principle,'' he said. ``It 
is the same spirit that says, `You work and toil and earn 
bread, and I'll eat it.' '' \4\
---------------------------------------------------------------------------
    \4\ Seventh Lincoln-Douglas debate, 15 October 1858; speech at 
Springfield, 26 June 1857; in Abraham Lincoln, Collected Works, ed. Roy 
P. Basler (New Brunswick: Rutgers University Press, 1953), 3:315; 
2:405.
---------------------------------------------------------------------------
    More recently, the Supreme Court again rightly stated that 
``[t]he right to enjoy property without unlawful deprivation * 
* * is, in truth a personal right. * * * In fact, a fundamental 
interdependence exists between the personal right to liberty 
and the personal right in property. Neither could have meaning 
without the other. That rights in property are basic civil 
rights has long been recognized.'' \5\ The sanctity and 
centrality of private property rights are thus ingrained in our 
constitutional design.
---------------------------------------------------------------------------
    \5\ Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972).
---------------------------------------------------------------------------
The Supreme Court's Kelo decision
    Notwithstanding this long history of the protection of 
private property rights, on June 23, 2005, the Supreme Court 
held in Kelo v. City of New London,\6\ that ``economic 
development'' was a ``public use'' under the Fifth Amendment's 
Takings Clause, which provides that ``nor shall private 
property be taken for public use without just compensation.'' 
\7\ As the Court described the motivation for the Government's 
taking of private property: ``the pharmaceutical company Pfizer 
Inc. announced that it would build a $300 million research 
facility on a site immediately adjacent to Fort Trumbull; local 
planners hoped that Pfizer would draw new business to the area, 
thereby serving as a catalyst to the area's rejuvenation.'' \8\ 
The Supreme Court held that these properties ``were condemned 
only because they happen to be located in the development 
area,'' and that the taking was constitutional because it 
``would be executed pursuant to a `carefully considered' 
development plan.'' \9\
---------------------------------------------------------------------------
    \6\ 125 S.Ct. 2655 (2005).
    \7\ U.S. Const., Amend. V (emphasis added).
    \8\ Id. at 2659.
    \9\ Id. at 2660-61.
---------------------------------------------------------------------------
    Justice O'Connor's dissenting opinion correctly summarized 
the terrifying import of the Supreme Court's decision, stating 
that ``To reason, as the Court does, that the incidental public 
benefits resulting from the subsequent ordinary use of private 
property render economic development takings `for public use' 
is to wash out any distinction between private and public use 
of property--and thereby effectively to delete the words `for 
public use' from the Takings Clause of the Fifth Amendment.'' 
\10\
---------------------------------------------------------------------------
    \10\ Id. at 2671 (O'Connor, J., dissenting).
---------------------------------------------------------------------------
    The importance of the Takings Clause and its protection of 
property rights is that it ``provid[es] safeguards against 
excessive, unpredictable, or unfair use of the government's 
eminent domain power--particularly against those owners who, 
for whatever reasons, may be unable to protect themselves in 
the political process against the majority's will. * * * The 
public use requirement * * * imposes a more basic limitation, 
circumscribing the very scope of the eminent domain power: 
Government may compel an individual to forfeit her property for 
the public's use, but not for the benefit of another private 
person. This requirement promotes fairness as well as 
security.'' \11\
---------------------------------------------------------------------------
    \11\ Id. at 2672.
---------------------------------------------------------------------------
    As the dissent points out, as a result of the majority's 
decision, ``The specter of condemnation hangs over all 
property. Nothing is to prevent the State from replacing any 
Motel 6 with a Ritz-Carlton, any home with a shopping mall, or 
any farm with a factory. * * * Today nearly all real property 
is susceptible to condemnation on the Court's theory. * * * Any 
property may now be taken for the benefit of another private 
party, but the fallout from this decision will not be random. 
The beneficiaries are likely to be those citizens with 
disproportionate influence and power in the political process, 
including large corporations and development firms. As for the 
victims, the government now has license to transfer property 
from those with fewer resources to those with more. The 
Founders cannot have intended this perverse result.'' \12\
---------------------------------------------------------------------------
    \12\ Id. at 2676.
---------------------------------------------------------------------------
The Supreme Court's Kelo decision threatens the most vulnerable
    Private business development can and does regularly occur 
without an eminent domain proceeding. Economic development of 
private property can take place without force, through 
voluntary negotiation. When the agreements regarding economic 
development cannot be reached, then economic development of 
private property can only occur for public purposes. Local 
governments have many different kinds of incentive, zoning, and 
code enforcement tools to promote economic development. The 
Kelo Court's endorsement of the Government's raw taking of 
entire tracts of private property from one private person to 
give to another private person who can put the land to some 
imagined more valuable use threatens to enshrine into law, in 
lieu of the free market a bureaucratic ``command and control'' 
of the economy long thought to have been relegated to the 
dustbin of history.\13\
---------------------------------------------------------------------------
    \13\ As the National Association of Home Builders has stated, ``In 
Kelo, the Supreme Court ruled that government entities can condemn any 
property in the name of `economic development.' NAHB believes that it 
is proper to use eminent domain when the project is for public use, but 
it should not be used to transfer private property to another private 
owner for the purpose of `upgrading' the land * * * Kelo substantially 
weakens the rights of private land owners--the government can now take, 
for nearly any reason, your land, subject to just compensation. This 
decision has rightfully alarmed many Americans.'' Letter from National 
Association of Home Builders to Members of Congress (June 30, 2005).
---------------------------------------------------------------------------
African-Americans and the elderly
    The National Association for the Advancement of Colored 
People (``NAACP'') and the American Association of Retired 
Persons (``AARP'') stated in their amicus brief to the Supreme 
Court in the Kelo case that:


          [The] holding that government may take property from 
        a private citizen for the purpose of giving it to 
        another private party purely for ``economic 
        development'' is both inconsistent with the language of 
        the Constitution and dangerous. Elimination of the 
        requirement that any taking be for a true public use 
        will disproportionately harm racial and ethnic 
        minorities, the elderly, and the economically 
        underprivileged. These groups are not just affected 
        more often by the exercise of eminent domain power, but 
        they are affected differently and more profoundly. 
        Expansion of eminent domain to allow the government or 
        its designated delegate to take property simply by 
        asserting that it can put the property to a higher use 
        will systematically sanction transfers from those with 
        less resources to those with more. This will place the 
        burden of economic development on those least able to 
        bear it, exacting economic, psychic, political and 
        social costs.\14\
---------------------------------------------------------------------------
    \14\ Brief of Amici Curiae National Association for the Advancement 
of Colored People, AARP, Hispanic Alliance of Atlantic County, Inc., 
Citizens in Action, Cramer Hill Resident Association, Inc., and the 
Southern Christian Leadership Conference in Support of Petitioners, 
2004 WL 2811057, at *3-*4.
---------------------------------------------------------------------------
          To hold that the public use requirement is satisfied 
        wherever there are potential economic benefits to be 
        realized is to render the public use requirement 
        meaningless.\15\
---------------------------------------------------------------------------
    \15\ Brief of Amici Curiae National Association for the Advancement 
of Colored People, AARP, Hispanic Alliance of Atlantic County, Inc., 
Citizens in Action, Cramer Hill Resident Association, Inc., and the 
Southern Christian Leadership Conference in Support of Petitioners, 
2004 WL 2811057, at *6.
---------------------------------------------------------------------------
          The history of eminent domain is rife with abuse 
        specifically targeting minority neighborhoods. Indeed, 
        the displacement of African-Americans and urban renewal 
        projects were so intertwined that ``urban renewal'' was 
        often referred to as ``Negro remova1.'' \16\
---------------------------------------------------------------------------
    \16\ Brief of Amici Curiae National Association for the Advancement 
of Colored People, AARP, Hispanic Alliance of Atlantic County, Inc., 
Citizens in Action, Cramer Hill Resident Association, Inc., and the 
Southern Christian Leadership Conference in Support of Petitioners, 
2004 WL 2811057, at *7.
---------------------------------------------------------------------------
          Well-cared-for properties owned by minority and 
        elderly residents have repeatedly been taken so that 
        private enterprises could construct superstores, 
        casinos, hotels, and office parks. For example, four 
        siblings in their seventies and eighties were forced to 
        leave their homes and Christmas tree farm to enable the 
        city of Bristol, Connecticut to erect an industrial 
        park.\17\ Several African-American families in Canton, 
        Mississippi were similarly forced to leave the homes 
        they had lived in for over sixty years to clear land 
        for a Nissan automobile plant.\18\
---------------------------------------------------------------------------
    \17\ Brief of Amici Curiae National Association for the Advancement 
of Colored People, AARP, Hispanic Alliance of Atlantic County, Inc., 
Citizens in Action, Cramer Hill Resident Association, Inc., and the 
Southern Christian Leadership Conference in Support of Petitioners, 
2004 WL 2811057, at *7.
    \18\ Brief of Amici Curiae National Association for the Advancement 
of Colored People, AARP, Hispanic Alliance of Atlantic County, Inc., 
Citizens in Action, Cramer Hill Resident Association, Inc., and the 
Southern Christian Leadership Conference in Support of Petitioners, 
2004 WL 2811057, at *9 (citing Bugryn v. City of Bristol, 774 A.2d 1042 
(Conn. App. Ct. 2001), appeal denied, 776 A.2d 1143 (Conn. 2001), cert. 
denied, 534 U.S. 1019, 122 S. Ct. 544 (2001); David Firestone, ``Black 
Families Resist Mississippi Land Push,'' The New York Times (September 
10, 2001) at A20).

    Eminent domain abuse has a history of disproportionately 
impacting the minority community. For example, of all the 
families displaced by urban renewal from 1949 through 1963, 63 
percent of those whose race was known were nonwhite.\19\ 
Racially changing neighborhoods that lacked institutional and 
political power were selected as blighted areas and designated 
for redevelopment through urban renewal programs.\20\ ``The 
purpose behind the designation of certain areas as blighted was 
clear. Renewal advocates believed that the blighted land could 
be put to a `higher use' under the right circumstances.'' \21\ 
As a result, ``across the nation, inner city neighborhoods were 
designated as blighted, properties condemned, and land turned 
over to private properties.'' \22\
---------------------------------------------------------------------------
    \19\ See B. Frieden & L. Sagalayn, Downtown, Inc. How America 
Rebuilds Cities 28 (1989).
    \20\ See Wendell E. Pritchett, The ``Public Menace'' of Blight: 
Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & 
Pol'y Rev. 1, 6 (2003).
    \21\ Id. at 21.
    \22\ Id. at 47.
---------------------------------------------------------------------------
    In 1981, urban planners in Detroit, Michigan, uprooted the 
largely lower-income and elderly Poletown neighborhood for the 
benefit of the General Motors Corporation.\23\ The Poletown 
condemnation became so notorious that the 1981 decision by the 
Michigan Supreme Court that upheld it was overturned by that 
same court just last year.\24\ In San Jose, California, ninety-
five percent of the properties targeted for economic 
redevelopment are Hispanic or Asian-owned, even though only 
thirty percent of businesses are owned by minorities.\25\
---------------------------------------------------------------------------
    \23\ See J. Wylie, Poletown: Community Betrayed 58 (1989).
    \24\ See County of Wayne v. Hathcock, 684 N.W.2d 765, 786 (Mich. 
2004) (overruling Poletown v. Detroit, 304 N.W.2d 455 (Mich. 1981), in 
which the court upheld Detroit's condemnation of the homes of 
approximately 3,438 persons, most of whom were elderly, retired, 
Polish-American immigrants, to build a General Motors plant).
    \25\ See Derek Werner, Note: The Public Use Clause, Common Sense 
and Takings, 10 B.U. Pub. Int. L.J. 335, 350 (2001).
---------------------------------------------------------------------------
    Martin Luther King III, a former president of the Southern 
Christian Leadership Conference, has said that ``eminent domain 
should only be used for true public projects, not to take from 
one private owner to give to another wealthier private owner.'' 
\26\
---------------------------------------------------------------------------
    \26\ Letter from Martin Luther King III, President of the Southern 
Christian Leadership Council, to The Fort Trumbull Homeowners in New 
London, Connecticut (December 2, 2002).
---------------------------------------------------------------------------
Houses of worship
    Houses of worship and other religious institutions are, by 
their very nature, non-profit and almost universally tax-
exempt. These fundamental characteristics of religious 
institutions render their property singularly vulnerable to 
being taken under the rationale approved by the Supreme Court 
in favor of for-profit, tax-generating businesses. In addition, 
many other charitable organizations will face similar threats 
because of their tax-exempt status.\27\
---------------------------------------------------------------------------
    \27\See, e.g., Sue Britt, ``Moose Lodge Set for Court Fight; Group 
to Fight Home Depot Land Takeover,'' Belleville News-Democrat 
(Missouri) (April 1, 2002) at 1B (Moose Lodge faced condemnation in 
order to bring a Home Depot to the city); April McClellan-Copeland, 
``Hudson, American Legion Closer on Hall; City Wants Building to 
Demolish for Project,'' Plain Dealer (Cleveland) (March 8, 2003) at B3 
(American Legion property faced condemnation to make way for small 
upscale shops, restaurants, and offices); Todd Wright, ``Frenchtown 
Leaders Want Shelter to Move; Roadblock to Revitalization?'' 
Tallahassee Democrat (July 13, 2003) at A1 (describing threatened 
condemnation of homeless shelter to clear the way for business 
development); Joseph P. Smith, ``Vote on Land Confiscation,'' Daily 
Journal (Illinois) (October 6, 2004) at 1A (detailing threatened 
condemnation of a Goodwill thrift store in order to build a shopping 
center).
---------------------------------------------------------------------------
    The Becket Fund for Religious Liberty wrote in their amicus 
brief in the Kelo case:

          To affirm this broad expansion of eminent domain 
        power [as the Supreme Court did] is to grant 
        municipalities a special license to invade the autonomy 
        of and take the property of religious institutions. 
        Houses of worship and other religious institutions are, 
        by their very nature, non-profit and almost universally 
        tax-exempt. These fundamental characteristics of 
        religious institutions render their property singularly 
        vulnerable to being taken under the rationale approved 
        by the [Supreme Court]. Religious institutions will 
        always be targets for eminent domain actions under a 
        scheme that disfavors non-profit, tax-exempt property 
        owners and replaces them with for-profit, tax-
        generating businesses. Such a result is particularly 
        ironic, because religious institutions are generally 
        exempted from taxes precisely because they are deemed 
        to be ``beneficial and stabilizing influences in 
        community life.'' \28\
---------------------------------------------------------------------------
    \28\ Brief of Amicus Curiae the Becket Fund for Religious Liberty, 
2004 WL 2787141, at *3 (quoting Walz v. Comm'r, 397 U.S. 664, 673 
(1970)).
---------------------------------------------------------------------------
          Because religious institutions are overwhelmingly 
        non-profit and tax-exempt, they will generate less in 
        tax revenues than virtually any proposed commercial or 
        residential use. Accordingly, when a municipality 
        considers what properties should be included under 
        condemnation plans designed to increase for-profit 
        development and increase taxable properties, the non-
        profit, tax-exempt property of religious institutions 
        will by definition always qualify and always be 
        vulnerable to seizure.\29\
---------------------------------------------------------------------------
    \29\ Brief of Amicus Curiae the Becket Fund for Religious Liberty, 
2004 WL 2787141, at *11.
---------------------------------------------------------------------------
          It bears noting that while religious institutions 
        face additional eminent domain risks stemming from 
        religious discrimination, many other charitable 
        organizations will face similar dangers because of 
        their tax-exempt status alone. Indeed, several 
        charitable organizations have faced condemnation 
        threats in recent years to satisfy municipal appetite 
        for more tax revenue.\30\
---------------------------------------------------------------------------
    \30\ Brief of Amicus Curiae the Becket Fund for Religious Liberty, 
2004 WL 278714l, at *11 n.22 (citing Sue Britt, Moose Lodge Set for 
Court Fight; Group to Fight Home Depot Land Takeover, ``(Belleville 
News-Democrat (Missouri) (April 1, 2002) at 1B (Moose Lodge faced 
condenmation in order to bring a Home Depot to the city); April 
McClellan-Copeland, Hudson, American Legion Closer on Hall; City Wants 
Building to Demolish for Project,'' Plain Dealer (Cleveland) (March 8, 
2003) at B3 (American Legion property faced condenmation to make way 
for small upscale shops, restaurants, and offices); Todd Wright, 
Frenchtown Leaders Want Shelter to Move; Roadblock to Revitalization? 
Tallahassee Democrat (July 13, 2003) at Al (describing threatened 
condemnation of homeless shelter to clear the way for business 
development); Joseph P. Smith, Vote on Land Confiscation, Daily Journal 
(Illinois) (October 6, 2004) at 1A (detailing threatened condenmation 
of a Goodwill thrift store in order to build a shopping center)).
---------------------------------------------------------------------------
Farmers
    According to the amicus brief filed in the Kelo case by the 
American Farm Bureau Federation:

          The farmer and rancher members of amici curiae own 
        and lease significant amounts of land on which they 
        depend for their livelihoods and upon which all 
        Americans rely for food and other basic necessities. As 
        valuable as that land is to our members and to the rest 
        of the country, however, it will often be the case that 
        more intense development by other private individuals 
        or entities for other private purposes would yield 
        greater tax revenue to local government. Thus, each of 
        our members is threatened by the decision * * * with 
        the loss of productive farm and ranch land solely to 
        allow someone else to put it to a different private use 
        * * * American farmers and ranchers need the protection 
        of the Fifth Amendment if they are to find economically 
        feasible ways to use their land and remain in the 
        agriculture business--the business of feeding the 
        American populace.\31\
---------------------------------------------------------------------------
    \31\ Brief Amici Curiae of the American Farm Bureau Federation et 
al., 2004 WL 2787138, at *2-4.

    And according to American Farmland Trust President Ralph 
Grossi, ``With so much farmland on the urban edge and near 
cities still in steep decline, ex-urban towns could be tempted 
by this ruling to make farmland available for subdivisions.'' 
\32\
---------------------------------------------------------------------------
    \32\ American Farmland Trust Policy Update (July 6, 2005).
---------------------------------------------------------------------------
The American people resoundingly reject the Supreme Court's Kelo 
        decision
    The Supreme Court's Kelo decision has been resoundingly 
criticized from all quarters. A resolution, H. Res. 340, 
expressing grave disapproval of the Kelo decision, was approved 
by the House of Representatives on June 30, 2005, by a vote of 
365-33.
    The protection of private property rights is an issue of 
primary concern to Americans today. According to a Wall Street 
Journal/NBC News poll, ``In the wake of court's eminent domain 
decision, Americans overall cite `private-property rights' as 
the current legal issue they care most about.'' \33\ As 
reported in the Wall Street Journal:
---------------------------------------------------------------------------
    \33\ John Harwood, ``Poll Shows Division on Court Pick,'' Wall 
Street Journal (July 15, 2005).

          [T]he issue has struck a nerve with Americans. In 
        Connecticut, where the Supreme Court case originated, a 
        Quinnipiac University poll shows just how much the 
        eminent-domain issue resonates. By an 11-to-1 margin, 
        those surveyed said they opposed the taking of private 
        property for private uses, even if it is for the public 
        economic good. According to the poll, 89 percent of 
        those surveyed were against condemnations for private 
        economic development, compared with 8 percent for them. 
        Douglas Schwartz, head of the poll, says he has never 
        seen such a lopsided margin on any issue he has 
        polled.\34\
---------------------------------------------------------------------------
    \34\ Michael Corkery and Ryan Chittum, ``Eminent-Domain Uproar 
Imperils Projects,'' The Wall Street Journal (August 3, 2005) at B1.

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

          Passing legislation limiting the government's ability 
        to snatch private property should not be a heavy lift--
        especially if lawmakers listen to their constituents * 
        * * Congressional action gets plenty of sympathy from 
        constituents. Sixty-eight percent of registered voters 
        favor legislative limits on the government's ability to 
        take private property away from owners. Public support 
        for limiting the power of eminent domain is robust and 
        cuts across demographic and partisan groups. 62 percent 
        of self-identified Democrats, 74 percent of 
        independents and 70 percent of Republicans support 
        limits. Few issues in recent memory have mobilized 
        citizens against a Supreme Court decision with such 
        ferocity. \35\ Then people were asked, ``Congress is 
        considering legislation that would say the Federal 
        government cannot take private property for private 
        commercial development if homeowners object. It would 
        also say State and local governments can NOT take 
        private property for private commercial development 
        against homeowners wishes if any federal funds are 
        being used in the project. What about you, would you 
        favor or oppose Congress placing these limits on the 
        ability of government to take private property away 
        from owners?'' A resounding 68 percent favored such 
        Congressional action. \36\
---------------------------------------------------------------------------
    \35\ Gary Andres, ``The Kelo Backlash: Americans Want Limits on 
Eminent Domain,'' The Washington Times (August 29, 2005) at A21.
    \36\ Gary Andres, ``The Kelo Backlash: Americans Want Limits on 
Eminent Domain,'' The Washington Times (August 29, 2005) at A21. 
Indeed, Americans' confidence in the Supreme Court keeps getting worse. 
On June 21, 2005, the Gallup Poll released a survey in which it asked 
whether people had confidence in the Supreme Court. The survey 
concluded that the reported ``41% confidence rating is among the lowest 
Gallup has ever found for this institution, and it perpetuates a 
gradual decline in the public's confidence over the past three years.'' 
Joseph Carroll, Gallup Poll Assistant Editor, ``Americans' Confidence 
in High Court Declines'' (June 21, 2005). In fact, respect for the 
Supreme Court has dropped among citizens of all political dispositions, 
including conservatives, moderates, and liberals Id.

    Even Justice John Paul Stevens, who wrote the Kelo decision 
for the five Justice majority, has said publicly he has 
concerns about the results of that decision, if not the legal 
reasoning behind it. Justice Stevens recently told the Clark 
County, Nevada, Bar Association that if he were a legislator 
instead of a judge, he would have opposed the results of his 
own ruling by working to change current law. \37\
---------------------------------------------------------------------------
    \37\ Samantha Young, ``Committee Tackles Court's Property Ruling, 
the Las Vegas Review Journal (September 8, 2005) (``Justice Stevens 
told the Clark County Bar Association that if he were a legislator 
instead of a judge bound by the law, he would have opposed the court's 
ruling in the case, Kelo v. the City of New London'').
---------------------------------------------------------------------------
H.R. 4128, the ``Private Property Rights Protection Act''
    Property rights are civil rights. There can be no 
individual freedom without the power of an individual to 
control their own autonomy through the free use of their own 
property. The Supreme Court's recent Kelo decision poses an 
immediate threat to that essential freedom, and the most likely 
victims will be the most vulnerable in our society if Congress 
does not act.
    Congress' power to condition the use of Federal funds 
extends to prohibiting States and localities from receiving any 
Federal economic development funds for a specified period of 
time if such entities abuse their power of eminent domain, even 
if only State and local funds are used in that abuse of power. 
Such a broader penalty is an appropriate use of Congress' 
spending power, as the Supreme Court has made clear that 
Congress may attach conditions to the receipt of any Federal 
funds provided such conditions are related to the ``Federal 
interest in particular national projects or programs'' and that 
they are ``unambiguous.'' \38\
---------------------------------------------------------------------------
    \38\ See South Dakota v. Dole, 483 U.S. 203 (1987) (upholding as 
constitutional legislation in which Congress provided that a state 
would lose 5% of its federal transportation funds unless states 
mandated a drinking age of 21).
---------------------------------------------------------------------------
    H.R. 4128 denies States or localities that abuse eminent 
domain all Federal economic development funds for a period of 
two years.\39\ Under such a penalty, there is a clear 
connection between the Federal funds that would be denied and 
the abuse Congress is intending to prevent: States or 
localities that have abused their eminent domain power by using 
``economic development'' as an improper rationale for a taking 
should not be trusted with Federal taxpayer funds for other 
``economic development'' projects which could themselves result 
in abusive takings of private property.
---------------------------------------------------------------------------
    \39\ H.R. 4128 also provides that any two year penalty period will 
begin only after final judgment on the merits by a court that the state 
or locality has violated the terms of this legislation.
---------------------------------------------------------------------------
    To ensure that any conditioning of the use of Federal funds 
is unambiguous, H.R. 4128 includes a ``notification'' section 
that would require the Attorney General to compile a list of 
the Federal laws under which Federal economic development funds 
are distributed and communicate such list to the chief 
executive officer of each state (its Governors) and also make 
it available on the Internet for use by the public and by the 
authorities in each State and political subdivisions of each 
State empowered to take private property and convert it to 
public use subject to just compensation for the taking. That 
way, States and localities will be put on notice that if they 
receive any Federal funds under the listed Federal laws, they 
must refrain from abusing their power of eminent domain or risk 
losing such funds for a period of two years. Further, only the 
locality, and not the whole State, would suffer the punishment 
if only the locality abused its eminent domain powers. H.R. 
4128 also contains a definition of ``Federal economic 
development funds'' that the Department of Justice would use 
when putting together its list of those Federal laws that meet 
such definition. The notification provisions also provide that 
basic information about the legislation be made available to 
the public through the Department of Justice's Internet 
website.
    H.R. 4128 provides States and localities with an 
opportunity to cure any violation before they lose any Federal 
economic development funds by either returning or replacing the 
improperly taken property.
    H.R. 4128 also includes an express private right of action 
to make certain that those suffering injuries for a violation 
of this legislation be allowed access to State or Federal court 
to enforce the provisions of the bill. Further, H.R. 4128 
contains a statute of limitations of seven years following the 
conclusion of any condemnation proceedings improperly 
condemning the private property for an improper private use or 
any subsequent allowance of the use of such property for an 
improper private use.\40\
---------------------------------------------------------------------------
    \40\ This is to allow enforcement of the Act if the government says 
it needs to use eminent domain to build a road, and it takes private 
property to do so, but then it never actually builds the road but 
instead gives the land to a large private company for use as a 
business.
---------------------------------------------------------------------------
    H.R. 4128 also includes a fee-shifting provision--identical 
to those in other civil rights laws--that allows a prevailing 
property owner to be awarded attorney and expert fees as part 
of the costs of bringing the litigation to enforce the bill's 
provisions.
    H.R. 4128 also includes a definition of ``economic 
development'' that allows the types of takings that have 
traditionally been considered appropriate public uses. The bill 
also includes exceptions for the transfer of property to public 
ownership, and to common carriers \41\ and public utilities, 
and for related things like pipelines. The bill also makes 
reasonable exceptions for the taking of land that is being used 
in a way that constitutes an immediate threat to public health 
and safety. The bill also makes exceptions for: the merely 
incidental use of a public property by a private entity, such 
as a retail establishment on the ground floor in a public 
property; for the acquisition of abandoned property; and for 
clearing defective chains of title in which no one can be said 
to really own the property in the first place.
---------------------------------------------------------------------------
    \41\ Black's Law Dictionary defines ``common carrier'' as an entity 
that is ``generally required by law to transport * * * without refusal, 
if the approved fare or charge is paid.'' Black's Law Dictionary (8th 
ed. 2004). The term ``as of right'' is defined in Black's Law 
Dictionary as ``by virtue of a legal entitlement,'' ibid, which is part 
of the criteria that defines a common carrier's legal obligations, as a 
publicly regulated entity, to allow access to the public. A common 
carrier is something entirely different from, for example, a private 
shopping mall, which is not open to the public as of right, as a 
shopping mall generally has the right to exclude anybody from its 
premises.
---------------------------------------------------------------------------
    H.R. 4128 also includes a rule of broad construction that 
provides that the Act shall be construed in favor of a broad 
protection of private property rights, to the maximum extent 
permitted by the terms of the Act and the Constitution.
    Finally, H.R. 4128 includes a provision providing that the 
legislation would not become effective until the start of the 
first fiscal year following the enactment of the legislation in 
order to provide States and localities with sufficient lead 
time within which to come into compliance with the legislation, 
and in any case the legislation would not apply to any project 
for which condemnation proceedings have been initiated prior to 
the date of enactment.

                                Hearings

    The House Committee on the Judiciary held no hearings on 
H.R. 4128.

                        Committee Consideration

    On October 25, 2005, the House Committee on the Judiciary 
received a referral of H.R. 4128. On October 27, 2005 the 
Committee met in open session and ordered favorably reported 
the bill H.R. 4128 as amended to the House by a recorded vote 
of 27-3, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee sets forth the 
following rollcall votes that occurred during the Committee's 
consideration of H.R. 4128.
    1. Nadler Amendment #1 to strike reference to public 
facility in H.R. 4128 was not agreed to by a vote of 7 ayes to 
20 nays.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Feeney......................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................              X
Mr. Van Hollen..................................................              X
Ms. Wasserman Schultz...........................................              X
Mr. Sensenbrenner, Chairman.....................................
                                                                 -----------------------------------------------
    Total.......................................................              7              20
----------------------------------------------------------------------------------------------------------------

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

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Lungren.....................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Inglis......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Feeney......................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Van Hollen..................................................              X
Ms. Wasserman Schultz...........................................              X
Mr. Sensenbrenner, Chairman.....................................
                                                                 -----------------------------------------------
    Total.......................................................             27               3
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill H.R. 4128, the following estimate and 
comparison prepared by the Congressional Budget Office pursuant 
to section 402 of the Congressional Budget Act of 1974.
                                                  October 31, 2005.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4128, the Private 
Property Rights Protection Act of 2005.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Gregory 
Waring (for federal costs) and Marjorie Miller (for the state 
and local impact).
            Sincerely,
                                               Douglas Holtz-Eakin.
    Enclosure.

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

    H.R. 4128 would deny federal economic development 
assistance to any state or local entity that uses the power of 
eminent domain for economic development and would prohibit 
federal agencies from engaging in this practice. The bill would 
specifically prohibit state and local governments from taking 
private property and conveying or leasing that property to 
another private entity, either for a commercial purpose or to 
generate additional taxes, employment, or general economic 
health. A state or local government found to have violated this 
prohibition would be ineligible for certain federal economic 
development funds for two years, but could become eligible by 
returning or replacing the property. The bill would give 
private property owners the right to bring legal actions 
seeking enforcement of these provisions and would waive states' 
constitutional immunity to such suits.
    CBO expects that implementing the bill would have no 
significant impact on the federal budget because most 
jurisdictions would not risk the economic development 
assistance they receive from the federal government by using 
eminent domain as described in the bill. Further, a few states 
are considering legislation that would restrict the authority 
of localities to take private property for economic development 
projects. Because the bill would deny certain economic 
assistance for up to two years to localities using eminent 
domain in a way proscribed in the bill, the pace of spending 
for some discretionary grant programs could be marginally 
reduced. Enacting the bill would not affect direct spending or 
revenues.
    H.R. 4128 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA), 
but it would impose significant new conditions on the receipt 
of federal economic development assistance by state and local 
governments. (Such conditions are not considered mandates under 
UMRA.) Because these conditions would apply to a large pool of 
funds, the bill would effectively restrict the use of eminent 
domain, and would have a significant impact on local 
governments' powers to manage land use in their jurisdictions. 
Further, state and local governments could incur significant 
additional legal expense to respond to private legal actions 
authorized by the bill.
    On October 19, 2005, CBO transmitted a cost estimate for 
H.R. 3405, the Strengthening the Ownership of Private Property 
Act of 2005, as ordered reported by the House Committee on 
Agriculture on October 7, 2005. H.R. 3405 contains similar 
provisions that would deny federal economic development 
assistance to any jurisdiction that uses the power of eminent 
domain for economic development. CBO also estimates that 
neither piece of legislation would have a significant impact on 
the federal budget.
    The CBO staff contacts for this estimate are Gregory Waring 
(for federal costs) and Marjorie Miller (for the state and 
local impact). This estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
4128 is designed to preserve the property rights granted to our 
Nation's citizens under the Fifth Amendment of the Constitution 
following the Supreme Court's decision in Kelo v. City of New 
London, which puts those rights in jeopardy.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in art. I, Sec. 8, cl. 1 (the Spending 
Clause), art. I, Sec. 8, cl. 3 of the Constitution, and Sec. 5 
of Amendment XIV.

               Section-by-Section Analysis and Discussion

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

Section 1. Short title

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

Section 2. Prohibition of eminent domain abuse by States

    Section 2(a) provides that no State or political 
subdivision of a State shall exercise its power of eminent 
domain, or allow the exercise of such power by any person or 
entity to which such power has been delegated, over property to 
be used for economic development or over property that is 
subsequently used for economic development, if that State or 
political subdivision receives Federal economic development 
funds during any fiscal year in which it does so.
    Section 2(b) provides that a violation of subsection (a) by 
a State or political subdivision shall render such State or 
political subdivision ineligible for any Federal economic 
development funds for a period of two fiscal years following a 
final judgment on the merits by a court of competent 
jurisdiction that such subsection has been violated, and any 
Federal agency charged with distributing those funds shall 
withhold them for such two year period, and any such funds 
distributed to such State or political subdivision shall be 
returned or reimbursed by such State or political subdivision 
to the appropriate Federal agency or authority of the Federal 
Government, or component thereof.
    Section 2(c) provides that a State or political subdivision 
shall not be ineligible for any Federal economic development 
funds under subsection (b) if such State or political 
subdivision returns all real property the taking of which was 
found by a court of competent jurisdiction to have constituted 
a violation of subsection (a) and replaces any other property 
destroyed and repairs any other property damaged as a result of 
such violation.

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

    Section 3 provides that the Federal Government or any 
authority of the Federal Government shall not exercise its 
power of eminent domain to be used for economic development.

Section 4. Private right of action

    Subsection (a) provides that any owner of private property 
who suffers injury as a result of a violation of any provision 
of this Act may bring an action to enforce any provision of 
this Act in the appropriate Federal or State court, and a State 
shall not be immune under the eleventh amendment to the 
Constitution of the United States from any such action in a 
Federal or State court of competent jurisdiction. Any such 
property owner may also seek any appropriate relief through a 
preliminary injunction or a temporary restraining order.
    Subsection (b) provides that an action brought under this 
Act may be brought if the property is used for economic 
development following the conclusion of any condemnation 
proceedings condemning the private property of such property 
owner, but shall not be brought later than seven years 
following the conclusion of any such proceedings and the 
subsequent use of such condemned property for economic 
development.
    Subsection (c) provides that in any action or proceeding 
under this Act, the court shall allow a prevailing plaintiff a 
reasonable attorneys' fee as part of the costs, and include 
expert fees as part of the attorneys' fee.

Section 5. Notification by Attorney General

    Subsection (a) provides that not later than 30 days after 
the enactment of this Act, the Attorney General shall provide 
to the chief executive officer of each State the text of this 
Act and a description of the rights of property owners under 
this Act. It also provides that not later than 120 days after 
the enactment of this Act, the Attorney General shall compile a 
list of the Federal laws under which Federal economic 
development funds are distributed. The Attorney General shall 
compile annual revisions of such list as necessary. Such list 
and any successive revisions of such list shall be communicated 
by the Attorney General to the chief executive officer of each 
State and also made available on the Internet website 
maintained by the United States Department of Justice for use 
by the public and by the authorities in each State and 
political subdivisions of each State empowered to take private 
property and convert it to public use subject to just 
compensation for the taking.
    Subsection (b) provides that not later than 30 days after 
the enactment of this Act, the Attorney General shall publish 
in the Federal Register and make available on the Internet 
website maintained by the United States Department of Justice a 
notice containing the text of this Act and a description of the 
rights of property owners under this Act.

Section 6. Report

    Section 6 provides that not later than 1 year after the 
date of enactment of this Act, and every subsequent year 
thereafter, the Attorney General shall transmit a report 
identifying States or political subdivisions that have used 
eminent domain in violation of this Act to the Chairman and 
Ranking Member of the Committee on the Judiciary of the House 
of Representatives and to the Chairman and Ranking Member of 
the Committee on the Judiciary of the Senate. The report shall 
(1) identify all private rights of action brought as a result 
of a State's or political subdivision's violation of this Act; 
(2) identify all States or political subdivisions that have 
lost Federal economic development funds as a result of a 
violation of this Act, as well as describe the type and amount 
of Federal economic development funds lost in each State or 
political subdivision and the Agency that is responsible for 
withholding such funds; and (3) discuss all instances in which 
a State or political subdivision has cured a violation as 
described in section 2( c) of this Act.

Section 7. Sense of Congress regarding rural America

    Section 7 contains findings and a Sense of Congress that 
the use of eminent domain for the purpose of economic 
development is a threat to agricultural and other property in 
rural America and that the Congress should protect the property 
rights of Americans, including those who reside in rural areas.

Section 8. Definitions

    Section 8 contains the following definitions of terms used 
in the Act. The term ``economic development'' means taking 
private property, without the consent of the owner, and 
conveying or leasing such property from one private person or 
entity to another private person or entity for commercial 
enterprise carried on for profit, or to increase tax revenue, 
tax base, employment, or general economic health, except that 
such term shall not include (A) conveying private property to 
public ownership, such as for a road, hospital, or military 
base, or to an entity, such as a common carrier, that makes the 
property available for use by the general public as of right, 
such as a railroad, or public facility, or for use as a right 
of way, aqueduct, pipeline, or similar use; (B) removing 
harmful uses of land provided such uses constitute an immediate 
threat to public health and safety; (C) leasing property to a 
private person or entity that occupies an incidental part of 
public property or a public facility, such as a retail 
establishment on the ground floor of a public building; (D) 
acquiring abandoned property; (E) clearing defective chains of 
title; and (F) taking private property for use by a public 
utility.
    The term ``Federal economic development funds'' means any 
Federal funds distributed to or through States or political 
subdivisions of States under Federal laws designed to improve 
or increase the size of the economies of States or political 
subdivisions of States.
    The term ``State'' means each of the several States, the 
District of Columbia, the Commonwealth of Puerto Rico, or any 
other territory or possession of the United States.

Section 9. Severability and effective date

    Subsection (a) provides for a severability clause. 
Subsection (b) provides that this Act shall take effect upon 
the first day of the first fiscal year that begins after the 
date of the enactment of this Act, but shall not apply to any 
project for which condemnation proceedings have been initiated 
prior to the date of enactment.

Section 10. Sense of Congress

    Section 10 contains a Sense of Congress providing that it 
is the policy of the United States to encourage, support, and 
promote the private ownership of property and to ensure that 
the constitutional and other legal rights of private property 
owners are protected by the Federal Government.

Section 11. Broad construction

    Section 11 provides that the Act shall be construed in 
favor of a broad protection of private property rights, to the 
maximum extent permitted by the terms of this Act and the 
Constitution.

          Changes in Existing Law Made by the Bill as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that H.R. 
4128 makes no changes to existing law.

                           Markup Transcript



                            BUSINESS MEETING

                       THURSDAY, OCTOBER 27, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble, acting Chair, presiding.
    Mr. Coble. I note the presence of a working quorum and we 
will come to order.
    Before we start, I want to advise Members of the Committee 
that the Chairman's sister-in-law died as a result of an 
accident last night, and he will not be able to be here today. 
But we will proceed accordingly. I have been pressed into duty 
here, so we will do the best we can today, folks.
    [Intervening business.]
    Mr. Coble. [presiding.]: The Committee on the Judiciary 
will again come to order. Pursuant to notice, I call up the 
bill H.R. 4128, the ``Private Protection''--the ``Private 
Property Protection Act of 2005'' for purposes of markup and 
move its favorable recommendation to the House. Without 
objection, the bill will be considered as read and open for 
amendment at any point.
    [The bill, H.R. 4128, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Mr. Coble. The Chair recognizes himself for 5 minutes to 
explain the bill.
    This is--I will read Chairman Sensenbrenner's statement.
    I bring up for markup today H.R. 4128, the ``Private 
Property Rights Protection Act of 2005,'' which is co-sponsored 
in addition to the Chairman, by Mr. Goodlatte, along with 
Ranking Member Conyers and Ms. Waters.
    On June 23rd, the Supreme Court, in a 5-4 decision in Kelo 
v. City of New London, held that economic development can be a 
public use under the fifth amendment's ``taking clause.'' In 
doing so, the Supreme Court allowed the Government to take 
perfectly fine property from one small homeowner and give it to 
a large corporation for a private research facility.
    As the dissent in that case pointed out, under the 
majority's opinion, any property may now be taken for the 
benefit of another private party. The government now has 
license to transfer property from those with fewer resources to 
those with more.
    The Founders cannot have intended this perverse result.
    The NAACP and the AARP have said the takings that result 
from the Court's decision will disproportionately affect and 
harm the economically disadvantaged, and in particular racial 
and ethnic minorities and the elderly. And the representatives 
of religious organizations have stated that houses of worship 
and other religious institutions are, by their very nature, 
non-profit and almost universally tax exempt.
    These fundamental characteristics of religious institutions 
render their property as singularly vulnerable to being taken 
under the rationale approved by the Supreme Court.
    The public reaction to the Kelo decision was swift and 
strong. The protection of private property rights is the number 
one issue that concerns Americans today, according to the Wall 
Street Journal-NBC News poll, by an 11 to 1 margin. Americans 
say they oppose the taking of private property for private 
uses, even if it is for public economic good.
    According to an American Survey poll, public property for 
limiting the power of eminent domain is robust and cuts across 
demographic and partisan groups. Even Justice John Paul 
Stevens, who wrote the Kelo decision for the 5-Justice 
majority, recently told the Clark County, Nevada, Bar 
Association that if he were a legislator instead of a judge, he 
would have opposed the results of his own ruling by working to 
change the current law.
    A week after the Supreme Court's now notorious Kelo 
decision, Mr. Sensenbrenner introduced H.R. 3135, the 
``Property Rights Protection Act of 2005,'' to help restore the 
property rights the Supreme Court took away.
    On October 25th, Chairman Sensenbrenner introduced the even 
stronger legislation before us today, which has benefitted 
greatly from the contributions of Ranking Member Conyers, Ms. 
Waters, Mr. Goodlatte, and others, including Mr. Cannon and Mr. 
Flake, representing the Western Caucus.
    H.R. 4128 enhances the penalty for States and localities 
that abuse their eminent domain powers by denying States or 
localities that commit such abuse all Federal economic 
development funds for a period of 2 years.
    Under this legislation, there is a clear connection between 
the Federal funds that would be denied and the abuse Congress 
is intending to prevent. The policy is that States or 
localities that abuse their eminent domain power by using 
economic development as the rationale for the takings should 
not be trusted with Federal economic development funds that 
could contribute to similarly abusive land grabs.
    H.R. 4128 also includes an express private right of action 
to make certain that those suffering injuries from a violation 
of the bill will be allowed access to State or Federal court to 
enforce its provisions.
    It also includes a fee-shifting provision identical to 
those in other civil rights laws that allows a prevailing 
property owner attorney and expert fees as part of the cost of 
bringing the litigation to enforce the bill's provisions.
    Under H.R. 4128, States and localities will have the clear 
opportunity to cure any violation before they lose any Federal 
economic development funds by either returning or replacing the 
improperly taken property.
    H.R. 4128 includes carefully crafted refinements of the 
definition of economic development that specifically allow the 
types of takings that prior to the Kelo decision had achieved a 
consensus as to their appropriateness.
    We are very mindful of the sad history of the abuse of 
eminent domain, particularly in low-income and often 
predominantly minority neighborhoods and the need to stop it.
    I'm also very mindful of the reasons we should allow the 
Government to take land, when the way in which the land is 
being used constitutes an immediate threat to the public health 
and safety.
    I believe this bill accomplishes both goals.
    Finally, H.R. 4128 would not become effective until the 
start of the first fiscal year following the enactment of the 
legislation in order to provide States and localities with 
sufficient lead time within which to prepare to come into 
compliance with the legislation. And H.R. 4128 would not apply 
to any project for which condemnation proceedings had begun 
prior to enactment.
    I look forward to reporting to the full House bipartisan 
legislation that will limit the effect of the Kelo decision.
    Who would like to be recognized? The distinguished 
gentleman from New York, Mr. Nadler, is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, I move 
to strike the last word.
    Thank you, Mr. Chairman.
    Mr. Chairman, for once the Supreme Court defers to the 
elected officials and Congress cries foul. The power of eminent 
domain should never be abused to take property for the private 
benefit of another. But this bill goes both too far and not far 
enough.
    It has a laudable purpose, but it is not well thought out, 
and needs further work before it is ready for a markup.
    This bill would permit many of the abuses and injustices of 
the past, while crippling the ability of State and local 
governments to perform genuine public duties.
    The bill does not, for example, deal with many of the 
problems of the use of eminent domain, which its supporters 
talk about.
    It would allow takings for private rights of way--for 
pipelines, transmission lines, railroads.
    It allows private land to be annexed for the benefit of 
these giant corporations. The bill would still allow highways 
to cut through communities and would not hinder in any way all 
the other public projects that have historically fallen most 
heavily on the poor and powerless.
    Hillary Shelton of the NAACP testified that these projects 
are just as burdensome as projects including private 
development.
    The bill does nothing to protect displaced renters. They 
are usually poor and often minority, but they get no 
compensation, no day in court, only the absentee slumlords get 
a day in court.
    On the other hand, the bill allows a taking to give private 
property--to give property to a private party ``such as a 
common carrier that makes the property available for use by the 
general public as a right.''
    So private land could be condemned for a privately-owned 
passenger rail system, a common carrier, but not for a freight 
rail or marine terminal because they operate through contracts, 
not common carrier status.
    The bill apparently allows for a private sports stadium. 
Such a stadium is privately owned ``available for use by the 
general public as of right'' at least as much as a railroad. 
You can buy a seat.
    The bill would seem to include permission to use eminent 
domain to build a private shopping center. You don't even need 
a ticket.
    I don't think the drafters had allowing private stadiums 
and private shopping centers in mind.
    The World Trade Center, however, could not have been built 
under this law. It was publicly owned, but was predominantly 
leased for office space and retail.
    Affordable housing like the Hope Six or the fabled Nehemiah 
Program, a faith-based affordable housing program in New York, 
could never have gone forward had this bill been in place.
    The local government would risk all of its economic 
development funding for 2 years, even for unrelated projects 
and face bankruptcy under this bill. If a city guesses wrong as 
to what's permitted, it could bulldoze the new downtown and 
rebuild the old house.
    If you want to give someone the power to extort an entire 
city, this bill does it.
    Mr. Chairman, allowing enforcement of the bill by seeking 
injunctive relief against an improper taking if the city 
accepts Federal economic development funds may be appropriate.
    The lawsuits permitted, however, and the uncertainty of the 
bill's definitions would cast a cloud over legitimate projects. 
A property owner, under this bill, has 7 years after the 
condemnation before the litigation and appeals even begin.
    Providing a 7-year window for a retroactive challenge to 
every eminent domain proceeding that may have violated the 
terms of the bill, a challenge that, if successful, will result 
in refund of all economic aid over 2 years will put a cloud 
over the financing of every project dependent, in whole or in 
part, on Federal economic development funds.
    Local governments, even those that do not violate the terms 
of this bill, will find themselves unable to issue bonds. Who 
would buy the paper of a local government or of a State 
government for that matter that might suddenly lose a 
significant part of its revenue base?
    I wonder if the trial lawyers wrote this provision of the 
bill?
    Mr. Chairman, this goes well beyond taking a Motel 6 to 
build a Ritz-Carlton without protecting the vulnerable.
    The remedies in this bill, some of them are well thought 
out--the injunctive relief provision; some of them would almost 
put the equivalent of a cloud of title over every economic 
development project; in fact, over every project that requires 
bonding by a city or State or local government.
    I don't think that's the intention of the authors of this 
bill, but that probably will be the effect.
    I urge either the defeat of the bill or preferably I urge 
that this bill be withdrawn for further reworking before it 
comes up for markup. Let me emphasize I basically approve the 
purpose of the bill.
    I am as upset with the Supreme Court decision as anyone. I 
do think remedial legislation is in order. I think some of the 
provisions of this bill make sense. Some of the provisions of 
this bill, however, without I think the authors intending it, 
go so far in putting a cloud over the economics and the bonding 
ability of State and local governments who do not. Any State or 
local government that uses eminent will always face a 
possibility for 9 years, for 7 years afterwards that someone 
could come along and say--and bring a lawsuit and say that 
project that you did, that economic--that eminent domain that 
you used 5, 6, 7 years ago that violated the Federal law; 
therefore, you got to give back 2 years of all economic aid 
from the Federal Government; and, therefore, you can't float 
your bonds because bond counsel will warn against this.
    I think this bill needs some serious work before it goes 
any further.
    I thank you. I yield back.
    Mr. Coble. The gentleman's time has expired.
    Are there amendments?
    Mr. Goodlatte. Mr. Chairman?
    Mr. Coble. The gentleman from Virginia, Mr. Goodlatte, for 
what purpose do you wish to speak?
    Mr. Goodlatte. Mr. Chairman, I move to strike the last 
word.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    I thank you for holding this markup on this important piece 
of legislation.
    Private ownership of property is vital to our freedom and 
our prosperity, and is one of the most fundamental principles 
embedded in our Constitution.
    The Founders realized the importance of property rights 
when they codified the takings clause of the Fifth Amendment to 
the Constitution, which requires that private property shall 
not be taken for public use without just compensation. That 
clause answers many of the objections raised by the gentleman 
from New York, because many of the things he's objecting to are 
provided for in the United States Constitution so long as the 
taking is for a public use.
    This clause created two conditions to the Government taking 
private property: that the subsequent use of the property is 
for the public and that the Government gives the property 
owners just compensation.
    However, the Supreme Court's recent 5 to 4 decision in Kelo 
v. City of New London is a step in the opposite direction. This 
controversial ruling expands the ability of State and local 
governments to exercise eminent domain powers to seize property 
under the guise of economic development when the public use is 
as incidental as generating tax revenues or creating jobs even 
in situations where the Government takes property from one 
private individual and gives it to another private entity.
    By defining public use so expansively, the Court 
essentially erased any protection for private property as 
understood by the Founders of our Nation.
    In the wake of the decision, State and local governments 
can use eminent domain powers to take the property of any 
individual for nearly any reason.
    Cities may now bulldoze private citizens' homes, farms, and 
small businesses to take away--to make way for shopping malls 
or other developments. Because shopping malls do not have 
public use as matter of right, the gentleman is incorrect when 
he suggest that this prohibition would not cover shopping 
malls.
    For these reasons, I joined with you, Mr. Chairman--
Chairman Sensenbrenner to introduce H.R. 4128, the ``Private 
Property Rights Protection Act of 2005.''
    This important piece of legislation incorporates many 
provisions from the Stop Act, which is legislation I 
introduced, along with Representatives Bonilla and Herseth. 
Specifically, this new legislation would prohibit all Federal 
economic development funds for a period of 2 years for any 
State or local government that abuses its eminent domain 
powers.
    In addition, this new legislation would allow State and 
local governments to cure violations by giving the property 
back to the original owner.
    Furthermore, this bill specifically grants adversely 
affected landowners the right to use appropriate legal remedies 
to enforce the provisions of the bill.
    The Stop Act was reported out of the House Agriculture 
Committee by a strong bipartisan vote of 40 to 1 earlier this 
month.
    And I thank Chairman Sensenbrenner for his willingness to 
produce one new piece of legislation that adds these important 
provisions from the Stop Act.
    No one should have to live in fear of the Government 
snatching up their home, farm, or business, and the Private 
Property Rights Protection Act will help to create the 
incentives to ensure that these abuses do not occur in the 
future.
    This legislation has strong bipartisan support. I thank 
Ranking Member Conyers and Congresswoman Waters for their 
participation in joining with us on the Committee to do 
something to discourage the abuse of power that was authorized 
by the Kelo decision.
    I yield back the balance of my time.
    Mr. Coble. The gentleman yields back. Are there amendments?
    Mr. Goodlatte. Mr. Chairman? Mr. Chairman, I have an 
amendment.
    Mr. Coble. The gentlelady from California. I saw her hand 
first.
    Ms. Waters. Thank you very much, Mr. Chairman.
    I do have an amendment.
    First, let me say to Chairman Sensenbrenner and all of the 
co-authors on the bill that I certainly appreciate all of the 
work that has gone into this bill and the bipartisan effort 
that have been forth to deal with the Supreme Court decision.
    I too share my shock at that decision, because I never 
thought that I would witness the Supreme Court of the United 
States issue or render a decision that would basically legalize 
the taking of private property for private use.
    I am adamantly opposed to the taking of private property 
for private use. As a matter of fact, I'm suspicious about 
eminent domain as we know it, the taking of private property 
for public use. And even when a government entity decides to 
use eminent domain, I think it should it be scrutinized. I 
think the citizens must be involved----
    Mr. Coble. Ms. Waters, will you suspend for just a minute?
    Ms. Waters. Yes.
    Mr. Coble. Do you have an amendment?
    Ms. Waters. I have an amendment at the desk.
    Mr. Coble. Very well.
    The Clerk will report.
    Ms. Waters. It is number one.
    The Clerk. Amendment to H.R. 4128, offered by Ms. Waters of 
California.
    Mr. Coble. I ask unanimous consent that the amendment be 
considered as read.
    [The amendment offered by Ms. Waters follows:]
    
    
    Ms. Waters. Thank you very much, Mr. Chairman. I said most 
of what I wanted to say. Before I had the amendment brought up.
    Mr. Coble. Very well.
    Ms. Waters. But basically that I am adamantly opposed. I'm 
rather a purist on this issue. I do not think there should be 
any exceptions, none.
    I think that the Constitution refers to proper compensation 
for the taking of land for public use. I think that should 
guide our cities, our counties, our community redevelopment 
agencies.
    I am told who I have had discussions with about this issue 
that no matter what that many of these entities are taking 
private land for private use, despite the fact that eminent 
domain is thought to be the taking of property for public use. 
It's going on now.
    And if that is the case and if Kelo has helped to highlight 
this, then I think that the fact that this bill would not allow 
entities to use Federal funds in the taking of private property 
for private use is a proper response to that Supreme Court 
decision.
    So, therefore, again my full appreciation for the work that 
has been done, but my amendment basically would not allow any 
exceptions, none, no exceptions, not even for our so-called 
safety reasons. I just don't think it's needed.
    For those people who would like to talk about properties 
that are unsafe, they have condemnation proceedings that can be 
utilized in cities and counties and these other entities.
    And so I would put forth this amendment and ask my 
colleagues to support excluding from this bill the taking of 
private property for any use. There should be no waivers, no 
exceptions.
    Mr. Coble. I thank the gentlelady from California.
    Mr. Goodlatte, I believe you handled these matters in some 
detail in the AG Committee so the Chair recognizes you in 
response.
    Mr. Goodlatte. Well, thank you, Mr. Chairman. And I, first 
of all, want to thank Ms. Waters for her purism. I very much 
respect her position on this. She testified before the 
Agriculture Committee on this, and I understand where she's 
coming from on this, because quite frankly when eminent domain 
powers are abused, often low-income people are the first people 
who are on the block because their properties are worth less 
than others and a community has the greatest temptation to take 
that property to increase its value.
    But a person's home is their castle no matter what their 
economic status might be.
    However, having said that, I must reluctantly oppose the 
gentlewoman's amendment because it goes well beyond the intent 
of this legislation to cure the Kelo decision. The problem with 
the Kelo case involved the Court saying that something as 
marginal as increasing the economic tax base, the tax revenues 
to the community would be a justification for taking private 
property and turning it over to another private entity for any 
kind of private economic development purpose.
    The gentlewoman's amendment, however, would eliminate the 
ability to use eminent domain for things that were intended I 
believe by our Founding Fathers in the Constitution, and which 
I think are essential for any community to operate under like 
building roads, having power lines and gas lines and other 
public utility lines, having schools and other public uses. And 
we have to draw the distinction in this legislation between a 
public purpose, and this private use that was the subject of 
the Kelo decision, and some decisions quite frankly that came 
before Kelo that I think are equally controversial.
    This legislation will address all those. It will go a long 
way to reduce the number of occurrences that the gentlewoman is 
concerned about.
    Ms. Waters. Will the gentleman yield?
    Mr. Goodlatte. I don't think we can eliminate them. Yes, 
I'll be happy to yield to the gentlewoman.
    Ms. Waters. Again, I have great appreciation for the work 
that you have done. However, you know that there is nothing in 
this amendment that would stop eminent domain usage for public 
purposes. That is what the law is now in every State, every 
municipality. There is nothing in this amendment that would 
prohibit, in any shape, form, or fashion, the taking of private 
property for public use.
    There is no need for us to even address that here. That is 
what takes place. That was not what the Kelo decision was all 
about. The Kelo decision was about the taking of private 
property for private use.
    Mr. Goodlatte. Well, reclaiming----
    Ms. Waters. This does not in any way stop any entity from 
exercising eminent domain for public use. So.
    Mr. Goodlatte. Reclaiming my time.
    Ms. Waters. Yes.
    Mr. Goodlatte. I have to respectfully strongly disagree. 
The problem with the Kelo case is that there was no definition 
of where the line would be drawn between public use and private 
use. And the things that the gentlewoman strips out of the bill 
are those provisions that make that clear distinction between 
private use and public use.
    So it would be my hope that the Committee would reject the 
amendment. We certainly would want to continue to work with Ms. 
Waters to find other ways to make it clear that there can't be 
abuses, but I think she--her amendment goes too far.
    Ms. Waters. Will the gentleman yield?
    Mr. Goodlatte. I'd yield further.
    Ms. Waters. What you attempted to do in the bill is cite 
some public use. I mean that's really redundant, because 
entities do that now. As a matter of fact, you can't cite all 
of the public reasons--I mean all of the reasons why eminent 
domain could be used for public use. There are a thousand and 
one of those reasons or more. Thousands of uses.
    So what you attempted to do was to cite some of the public 
uses, and the bill makes it seem as if you would now allow for 
the taking of private property for these public uses.
    Again, it's redundant. That already--that happens already.
    There is nothing in this bill that would stop that.
    Mr. Goodlatte. Reclaiming my time.
    Ms. Waters. Yes.
    Mr. Goodlatte. There is no definition in the United States 
Constitution of what constitutes public use, and that was what 
gave the Kelo Court the freedom to determine that public use 
included simply taking private property for other private 
economic development purposes just to increase the tax revenue 
base of the City of New London, Connecticut.
    And we need to have those provisions in there. Otherwise, 
you're correct: there would be no eminent domain authority 
whatsoever for any public use because it is not defined 
anywhere else.
    Ms. Waters. If the gentleman would yield for a question.
    Mr. Goodlatte. And you either bring it back to the Court or 
you would be eliminating them altogether; and, therefore, I 
must object.
    Ms. Waters. Would you yield for a question?
    Mr. Goodlatte. I would.
    Ms. Waters. Are you saying that you have identified all of 
the public uses for which eminent domain would be used for in 
this bill?
    Mr. Goodlatte. Reclaiming my time, I'm saying that I have 
identified all of the public use purposes for which we're 
asking this Committee to authorize, and we're not asking them 
to authorize any beyond that.
    And if the gentlewoman's objective is to limit the number 
of instances in which eminent domain can be used, she would 
want to see those limitations in the bill.
    Ms. Waters. The gentleman's interpretation is----
    Mr. Coble. The gentleman's time has expired.
    Ms. Waters.--incorrect.
    Mr. Coble. The question occurs on the Waters Amendment. All 
in favor say aye.
    Opposed no?
    I appears the noes have it. The noes have it.
    Are there further amendments?
    Mr. Cannon. Mr. Chairman?
    Mr. Coble. The gentleman from Utah, Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Mr. Coble. The Clerk will report.
    The Clerk. Amendment to H.R. 4128, offered by Mr. Cannon of 
Utah. Add at the end the following section:
    Mr. Coble. Unanimous consent that the amendment be 
considered as read.
    [The amendment offered by Mr. Cannon follows:]
    
    
    Mr. Cannon. Thank you, Mr. Chairman. It's actually a very 
simple amendment.
    Perhaps I can start as we're passing it out. In fact, I'll 
read it. It's very short; very simple.
    It's a rule of construction and it reads: ``this Act shall 
be construed in favor of a broad protection of private property 
rights, to the maximum extent permitted by the terms of this 
Act and the Constitution.''
    The intent of the legislation is to protect private 
property rights. And this amendment will help make sure judges 
can't find ways to wiggle out of the protections this bill 
gives to property owners.
    This rule of construction will tell every judge 
interpreting this legislation that if there's any doubt about 
how it should be applied, the judge should err on the side of 
the property owner.
    Let me also thank all those who worked on this bill, 
especially Chairman Sensenbrenner, who is not with us. He has 
my condolences on his family circumstances----
    Mr. Coble. Would the gentleman yield to the Chair?
    Mr. Cannon. I'd be happy to yield, Mr. Chairman.
    Mr. Coble. Mr. Cannon, this appears to be a technical 
amendment. The Chair will accept it.
    Mr. Cannon. Thank you. I yield back. Well, I yield to the 
gentleman from Virginia.
    Mr. Goodlatte. It's more than a technical amendment. I 
think it is a strengthening amendment, and it is along the 
lines of what Ms. Waters has attempted to accomplish. It will 
be one more way to assure that the law is construed in favor of 
the private property owner to the maximum extent possible.
    Mr. Cannon. Thank you, Mr. Chairman. Does the gentlelady 
from California wish to yield from me. I'll give it to you.
    Ms. Waters. Yes. Thank you very much.
    I appreciate you attempt to strengthen the bill with that 
language, and I certainly will support it.
    Your language, which requires a judge to err on the side of 
the property owner, gets closer to where I would like to be so 
that we don't have all of these interpretations that would 
allow for waivers or exceptions in ways that would harm the 
property owner.
    So I certainly will support it. And I will ask my 
colleagues to please support it.
    Mr. Coble. The question occurs on the Cannon amendment. All 
in favor say aye.
    Opposed no?
    It appears the ayes have it. The ayes have it, and the 
amendment is approved.
    Are there additional amendments?
    Mr. Nadler. Mr. Chairman.
    Mr. Coble. The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Mr. Chairman, I have an amendment at the desk, 
Mr. Chairman.
    Mr. Coble. The clerk will report.
    The Clerk. Mr. Chairman, I have two amendments for Mr. 
Nadler.
    Mr. Nadler. The short one.
    The Clerk. Amendment to H.R. 4128, offered by Mr. Nadler 
Page 8, 20----
    Mr. Nadler. That should be line 20.
    The Clerk. Page 8, line 20, insert ``or'' before ``public 
utility'' and strike ``or public facility.''
    Mr. Nadler. Mr. Chairman, I ask unanimous consent to insert 
the word ``line'' before 20?
    Mr. Coble. Without objection.
    [The amendment offered by Mr. Nadler follows:]
    
    
    Mr. Nadler. Thank you.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Nadler. Thank you. Mr. Chairman, this amendment I think 
will accomplish what everybody who drafted this bill wants to 
accomplish.
    If you look at the language on page 8, it says the term 
economic development means taking private property without the 
consent of the owner, conveying or leasing such property from 
one private person or entity to another, et cetera, et cetera, 
or to increase tax revenue, tax base. And all that would be 
prohibited except that such terms shall not include--so the 
following is not included within the proscription of the bill. 
The following is permitted: conveying private property to 
public ownership, such as for a road, hospital, or military 
base, or to an entity such as common carrier that makes the 
property available for use by the general public as of right, 
such as a railroad, public utility or public facility.
    Now I believe a public facility would mean a stadium or a 
shopping mall or a shopping center. So all this amendment would 
do is to remove the phrase or public facility on line 20 and 
put the word or in front of public utility.
    So you would have in the bill then that the following does 
not--that the bill does not apply to the following. The 
following is permitted: conveying private property to public 
ownership for a road, hospital, military base, blah, blah, or 
to an entity such as a common carrier that makes the property 
available for use by the general public as a right, such as a 
railroad or public utility, or for uses of right of way. And it 
would not include public facility.
    So all this does is take out or public facility, which 
would mean no stadiums, no shopping malls, which is what I 
assume the authors of the bill intended in the first place.
    Mr. Goodlatte. Mr. Chairman? Mr. Chairman?
    Mr. Coble. I thank the gentleman from New York.
    Mr. Nadler. And I yield to the gentleman from----
    Mr. Goodlatte. I'm asking for recognition.
    Mr. Coble. The gentleman from Virginia is recognized for 5 
minutes.
    Mr. Goodlatte. Thank you, Mr. Chairman. I must rise in 
opposition to this amendment.
    The operative words in the section cited by the gentleman 
are ``as a matter of right.'' Now, a public facility, like a 
stadium is, and would only be protected under this law if it 
was open the public as a matter of right. And if it were not, 
if there were restrictions on the use of the facility, then it 
would not be appropriate to use the eminent domain power for 
that purpose or the community would risk losing their public 
funding for 2 years--their Federal funding for 2 years.
    However, a shopping mall is a private entity that is not 
open to the public as a matter of right. Shopping centers, 
individual stores, are not open to the public as a matter of 
right. The shopping center can chose at any time to exclude a 
particular person from entering that shopping center if they 
have cause to do so, and that is the difference and is the 
operative provision in the language.
    And that--I will in a minute. And that is why you have to 
allow for public facility; otherwise, you would be encompassing 
all kinds of things that are public entities, not private 
entities, but public entities that would be excluded from 
eminent domain powers unless you have that provision in there.
    And the protection against abuse is the language as a 
matter of right.
    Mr. Nadler. Now, would the gentleman yield?
    Mr. Goodlatte. I will happily yield. Yes.
    Mr. Nadler. Well, the problem with that, Mr. Goodlatte, is 
that a railroad is not available to the public unless you buy a 
ticket.
    Mr. Goodlatte. Well, reclaiming my time, that's why 
railroads are specifically mentioned in the legislation as 
opposed to being encompassed by the----
    Mr. Nadler. Would the gentleman yield again?
    Mr. Goodlatte. I will.
    Mr. Nadler. It says by the--it says a common carrier that 
makes the property available for use by the general public as 
of right, such as a railroad. In other words, it is saying that 
a railroad or a public utility are examples of what--of things 
that are available as of right. And anybody will--what a court 
will read this as is that anything that is available to the 
general public, even if you have to buy a ticket, even if they 
retain the right to exclude you, is excluded. And that--and it 
certainly a stadium would be equivalent to a railroad, because 
you have to buy a ticket. And a shopping mall is even loser, 
because you don't have to buy a ticket.
    Mr. Goodlatte. Reclaiming my time, the term ``as of right'' 
is defined in Black's Law Dictionary as ``by virtue of a legal 
entitlement.'' Certainly, a private store, such as a Target 
store or a Home Depot is not open to the public as of right. 
Such stores have the right to kick anybody out of their stores 
as they see fit. Unless, of course, they're illegally 
discriminating against a legally protected class.
    So a Target or a Home Depot store or a shopping mall would 
clearly not meet the criteria of this exception.
    Mr. Coble. The time of the gentleman has expired. The 
question occurs on the Nadler Amendment. All in favor?
    Ms. Waters. Mr. Chairman? Mr. Chairman? Mr. Chairman?
    Mr. Coble. The gentlelady from California.
    Ms. Waters. I rise in support of the gentleman's amendment. 
He's absolutely correct. And I think that----
    Mr. Coble. For what purpose does the gentlelady seek 
recognition. Move to strike the last word?
    Ms. Waters. Strike the last word.
    Mr. Coble. The gentlelady is recognized for 5 minutes.
    Ms. Waters. I think that what this Committee is going to 
have to focus on is whether or not we are attempting to put a 
bill out that's going to protect private property without 
trying to massage it in ways that would allow people to build 
public stadiums and other kinds of buildings and developments 
so that they can take people's property for it. We see it all 
over the country taking place now.
    And so I think that the gentleman to the right of me, Mr. 
Watt, makes a good--raises a good question, when he asked about 
this right that you try and define whether or not you have to 
pay to go into this public stadium that you are allowing to be 
built with this exception that you have put into this bill.
    Mr. Nadler. Would the gentlelady yield?
    Ms. Waters. Yes, I'll yield.
    Mr. Nadler. Thank you. I--you know, I disagree with the--I 
agree with the gentlelady. I disagree with the gentleman from 
Virginia, because I think he's reading it too finely, and I 
think that the way that any court will read that if a railroad 
is available as of right, so is a stadium. They both sell 
tickets. They both retain the right to kick people out. A 
shopping mall doesn't bother selling tickets. It retains the 
right to keep people out.
    Perhaps a better way, and maybe I should ask the gentleman 
from Virginia would he accept an amendment that I'll draft that 
will simply leave the language as it is, but add after the 
words ``or public facility, but not including stadiums or 
shopping malls.'' That would seem to accomplish what I think 
everybody wants to accomplish however you chose to read the 
language.
    Mr. Goodlatte. If the gentlewoman would yield, I'd be happy 
to respond to the gentleman's----
    Ms. Waters. Yes, I'll yield.
    Mr. Goodlatte. Well, I would not agree to that because the 
distinction has to be made between public use and private use 
under the law, and that is what the language that's in the bill 
already does. And a public stadium, operated with access to the 
public as a matter of right, should be and would be allowed 
under the law. A shopping mall would not.
    Ms. Waters. No.
    Mr. Nadler. Wait a minute. Would the gentlelady yield 
again?
    Mr. Goodlatte. So it would be inaccurate.
    Ms. Waters. Yes, I'll be happy to yield.
    Mr. Nadler. Do I understand the gentleman to say that a 
stadium would be available; that you could build a private 
stadium through use of eminent domain under this provision?
    Mr. Goodlatte. Only if it's open to the public as a matter 
of right.
    Mr. Nadler. As any stadium is. But in other words----
    Mr. Goodlatte. Now, I don't say that.
    Mr. Nadler.--sports stadium----
    Mr. Goodlatte. I would not say that any stadium is open as 
a matter of fact.
    Mr. Nadler. All right. A sports stadium for the Nationals 
or for the Mets or for the Yankees would that--you would that 
that should be available to develop that under use of eminent 
domain?
    Mr. Goodlatte. If it's open to the public as a matter of 
right, yes.
    Mr. Nadler. Well, let me simply say I thought the major 
purpose of this bill was that that kind of abuse of the power 
of eminent domain for private purposes is what we want to 
prohibit. And now you're telling us that that is--that a 
stadium that sells tickets for a Yankee game or a Nationals 
game or a Knicks game or even the White Sox games that that's 
okay for eminent domain?
    Ms. Waters. Reclaiming my time--is it my time? Reclaiming 
my time.
    Mr. Nadler. Yes. It's your time.
    Mr. Coble. The gentlelady from California----
    Ms. Waters. Reclaiming my time.
    Mr. Coble.--controls the time.
    Ms. Waters. That's precisely why I thought we were putting 
forth this legislation, to stop that kind of abuse where you 
have even your local elected officials and mayors, in 
cooperation with developers, who want to take people's property 
and build stadiums and other private development. It's no right 
to be able to buy a ticket to a stadium where homeowners have 
lost their property because somebody likes football or whatever 
it is they play in these stadiums.
    I just think we don't want to do that. We are fooling 
ourselves if we put forth legislation that we claim protects 
our citizens from having their private property taken when we 
have these kinds of exceptions and loopholes, and I will yield 
to the gentleman from New York.
    Mr. Coble. She yields to you, Mr. Nadler, did you want to.
    Mr. Nadler. Yes. I--thank you. I simply want to say that I 
have to go back to what I observed earlier in my opening 
statement. Most of the people who are drafting this bill, most 
of the Members of this Committee, want to eliminate the abuse 
that we all believe that the Supreme Court decision in Kelo 
opens us up to; that if we have a bill that allows the taking 
of or the use of taking of private property under the power of 
eminent domain, and giving it to a multi-millionaire to build a 
sports stadium for the Yankees or the Mets or whoever for 
private property, which is what that sports stadium is, that's 
not solving the problem. That's not solving the problem.
    Now, Mr. Goodlatte says that under this bill, it would 
allow the taking of private property by eminent for a stadium 
and that's okay, but not for a shopping mall, and that's not 
okay. I don't see the distinction.
    I again think the bill ought to go back to the drawing 
boards, because we agree on what we want to do, at least I 
think we agree on what we want to do. I think most people on 
this Committee, on both sides of the aisle, think it 
shouldn't--that we don't want to see private property used for 
stadiums.
    Mr. Coble. The gentlelady's time has expired. For what 
purpose does the gentleman from Texas seek recognition?
    Mr. Smith. Mr. Chairman, I move to strike the last word.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Smith. Mr. Chairman, I will yield my time to the 
gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. I thank the gentleman from Texas for 
yielding.
    That is not what this bill does. The distinction, and 
you're right. We want to address the Kelo decision. The Kelo 
decision. The Kelo decision addresses the issue of a government 
taking private property and turning it over to another entity 
for private development purposes. Ninety-five percent of the 
stadiums in the United States are publicly owned facilities, 
open to the public as matter of right. If you have a stadium 
that is privately owned, and it is not open to the public as a 
matter of right, then the sanctions imposed in this bill would 
apply to that eminent domain taking.
    Now, I understand Ms. Waters would like to stop any public 
taking of private property for any public purpose.
    Ms. Waters. That's not true.
    Mr. Goodlatte. Well, all right. Well, then I----
    Ms. Waters. Don't misinterpret. Don't do that.
    Mr. Goodlatte. I have the time. The fact of the matter is 
that is--if that' the gentlewoman's goal, then that's great, 
'cause that's my goal, too. The fact of the matter is that this 
will only take effect for public uses where--I mean for private 
uses where the facility is not open to the public as a matter 
of right.
    And that's why I must strongly oppose the gentleman's 
amendment, because he's trying to confuse shopping malls, which 
would clearly not be covered under this legislation and a 
public stadium, which clearly would, and he is mixing public 
and privately-owned stadiums to suggest that a private 
stadium--a city could take land, turn it over to a private 
entity and have them develop it, privately own it, privately 
restrict access to it, and they would still be able to use the 
eminent domain power.
    This would stop that practice from occurring, but it would 
not stop the practice of a public--of a community taking 
property for a public purpose, as is intended under the 
Constitution--a public use.
    Mr. Coble. Does the gentleman yield back?
    Mr. Smith. Mr. Chairman, I'll yield back the balance of my 
time.
    Mr. Coble. The question occurs on the Nadler Amendment. All 
in----
    Mr. Scott. Mr. Chairman? Mr. Chairman?
    Mr. Coble. The gentleman from Virginia.
    Mr. Scott. Move to strike the last word.
    Mr. Coble. The gentleman from Virginia is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I think this entire discussion 
shows the problems in the underlying bill. I mean, you kind of 
know it when you see it. And we're trying to define it. And 
going back and forth on when a stadium is available--when you 
can build a stadium using eminent domain and when you can't is 
just--we don't--you can't define it. I mean when it's public 
and when it's private, you can't--you can have a private 
developer. How you build a stadium for the Nationals is going 
to determine whether or not you can use eminent domain, whether 
the city has sole title or whether a developer can hold title, 
and that's how you're going to build a stadium. I think that 
shows when you know it when you see it, but you can't define 
it. And that's what we're trying to do is define what cannot be 
defined. And this bill for that reason is fatally flawed and 
this amendment and the discussion on the amendment show part of 
the problem with the underlying legislation.
    I yield to the gentleman from New York.
    Mr. Nadler. Thank you. Thank you. First of all, I thank the 
gentleman for yielding.
    First of all, I think this does show the problem here; that 
the bill needs further work. Now, frankly, I was referring to a 
privately owned stadium, and I thought Mr. Goodlatte was 
talking about a privately-owned stadium would be okay under 
this bill, too. I'm glad to hear he doesn't mean that. But as I 
read the bill, the bill seems to say that, because a private 
railroad--anything that makes the property available for the 
use by the general public as a right, such as a railroad. A 
railroad is privately owned. A railroad makes the facilities 
available to anybody who pays a ticket, retains the right to 
kick somebody off or say we don't like you unless he says it 
for the wrong, and that would seem to--and when you say that, 
that would seem to indicate that a--I'll yield in a moment--
that it would seem to indicate that a privately-owned stadium 
or a privately-owned shopping mall would fall under the same 
thing.
    And I think we can clarify the privately-owned shopping 
center since you seemed to--it's harmless to specify that if 
you think it's already included. But then the question comes up 
with a stadium, for instance. You said that 95 percent of 
stadiums are publicly-owned that are now built. That may or may 
not be true. I don't know, but assuming it is true, that means 
if you want to use eminent domain for the next stadium, well, 
you just structure the deal so you get in the city government 
to agree to condemn it, sell it to you for a dollar or lease it 
to you for 99 years, and it's a public facility, as opposed to 
condemning it and giving it to you.
    I don't see the practical distinction.
    So I think that, again, I would hope that this amendment or 
some other version of an amendment to make clear that stadiums 
and shopping malls are not included. Otherwise, the distinction 
you're making may be a legal distinction, but it does not do 
what I thought we all wanted to do.
    Now, I do not agree with Maxine, if what she wants to do is 
eliminate all public use. I certainly don't want to eliminate 
all public use.
    Ms. Waters. Will the gentleman yield?
    Mr. Nadler. I'll yield.
    Ms. Waters. Please I----
    Mr. Coble. The gentleman from Virginia controls the time.
    Ms. Waters. Listen. I think it's very important if----
    Mr. Nadler. Yes. I'll yield.
    Ms. Waters. I do not wish to have what I believe defined 
incorrectly. So I want to make it clear that I do not in any 
shape, form, or fashion----
    Mr. Nadler. Right.
    Ms. Waters.--in anything that I've said or done----
    Mr. Nadler. I stand corrected.
    Ms. Waters.--interfere with eminent domain as we know it 
for public use. This is about taking of private property for 
private use. I believe there should be no exceptions for the 
taking of private property for private use. That's very 
different from eminent domain for public use. Let's be clear 
about that. I yield back.
    Mr. Scott. Reclaiming my time, Mr. Chairman, I think this 
also points out, they're trying to build a stadium in 
Washington, D.C. If a private individual decides he's going to 
do it himself, that would be prohibited under this language. If 
you're using public money and soaking the public to build it, 
then that would be okay.
    That's absurd. I yield back.
    Mr. Coble. The gentleman yields back. The question occurs 
on the Nadler Amendment. All in favor say aye.
    Opposed no?
    It appears the noes have it. A rollcall vote having been 
requested on the amendment, Members will when their names are 
called answer aye. Those who approve--a no--in opposition. The 
Clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    [No response.]
    The Clerk. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Pass.
    The Clerk. Mr. Scott, pass. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Pass.
    The Clerk. Ms. Lofgren, pass. Ms. Jackson Lee?
    Ms. Jackson Lee. I'm going to pass for a moment. Thank you.
    The Clerk. Ms. Jackson Lee, pass. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Mr. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
    Mr. Coble. No.
    The Clerk. Mr. Chairman, no.
    Mr. Coble. Are Members wanting to change their vote or 
vote? The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I vote no.
    The Clerk. Mr. Scott, no.
    Mr. Coble. The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. I'm not voting.
    The Clerk. Mr. Chairman, Mr. Watt vote aye.
    Mr. Watt. I would like to change my vote to no.
    Mr. Coble. The gentleman changes his vote to no.
    The gentlelady from California, Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no.
    Mr. Coble. The Ranking Member, the gentleman from Michigan, 
Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Coble. Are there--the gentleman from California, Mr. 
Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Mr. Coble. Are there other Members who wish to vote or 
change their votes? Ms. Jackson Lee, the gentlelady from Texas.
    Ms. Jackson Lee. How am I recorded?
    The Clerk. Mr. Chairman, Ms. Jackson Lee is recorded as a 
pass.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Mr. Coble. The Clerk will report.
    The Clerk. Mr. Chairman, there are 7 ayes and 20 noes.
    Mr. Coble. And the amendment fails. Are there additional 
amendments?
    Mr. Watt. Mr. Chairman?
    Mr. Coble. The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Mr. Chairman, I have an amendment at the desk.
    Mr. Coble. I'll get you next, Mr. Cannon.
    The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. I have an amendment at the desk.
    Mr. Coble. The Clerk will report.
    The Clerk. Amendment to H.R. 4128, offered----
    Mr. Watt. I ask unanimous consent the amendment be 
considered as read.
    Mr. Coble. Without objection.
    [The amendment offered by Mr. Watt follows:]
    
    
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman. This amendment would 
strike the entirety of the bill other than section 7, which is 
the Sense of Congress section. There are some things in this--
in section 7 that expresses the Sense of Congress that 
emphasizes our concern and desire for condemnation, eminent 
domain to be properly used and with restraint, but I think once 
we go beyond that, I think we have just gone too far.
    I sit here sometimes, and I think I live in a different 
world than my colleagues. I live in a city in which at least 
half of the downtown area has been taken from African Americans 
and poor people primarily under eminent domain on the theory 
that the parts of the city were blighted and that you had to 
remove those parts of the city to--for a public purpose. Back 
in the '70's and '80's everybody was calling it urban renewal. 
Throughout my community, we were calling it urban removal, 
because that's exactly what it was.
    As a result of those condemnations, there's an Adams Mark 
Hotel that sits in the middle of where the Black community used 
to be. There is a Board of Education that's there, which I 
guess could still be done under this bill. There's an office 
building that I helped develop when I was practicing law. 
That's there because we Black folks went to the City Council 
and said, hey, you've taken all this property and you're giving 
it to rich White people, and the least you could do is allow 
one little minority business development to take place.
    There is a Baptist Church on land. That's a private use 
that was taken. And more recently, I live in a city that has 
condemned for eminent domain the property that the Bank of 
America Stadium is built on. That's the stadium that the 
Panthers play in.
    We don't have an idea whether it's privately-owned or 
publicly-owned, to be honest with you, because the football 
team certainly is privately-owned. They're the only tenant that 
will be able to use it. The payment of the bonds that were used 
to build the darn thing are paid for from a seat tax.
    So I mean I don't know what world you all are living in. 
The Kelo decision has been the story of the African American 
and poor community for years and years and years. And so I just 
don't understand what world you're living in.
    And this bill is not going to solve the problem that I'm 
describing because, still, blighted neighborhoods will be taken 
for a public purpose, and they will be predominantly minority 
communities, and certainly mostly poor communities. We're 
getting ready to take property by eminent domain to build a 
transit center. Is that public or private? The private trains 
will come into it. That is Amtrak public or private? We don't 
know whether it's public or private. Nobody sitting here knows 
whether Amtrak is public or private. We're certainly putting 
money into it as if it were public. But they charge a fee, just 
like our football team charges a fee. This public access that 
Mr. Goodlatte is talking about. I don't know what in the world 
he's talking about when you start charging a fee to get into 
something. I get into a lot of shopping centers a lot cheaper 
than I can get into our public-private partnership football 
stadium.
    So I just don't understand what all this flap has been 
about, and I don't understand how this bill does anything to 
address it. We ought to be restrained in our use of eminent 
domain. I agree with that. The Sense of Congress part of this 
expresses that, and I think that's enough. I yield back the 
balance of my time.
    Mr. Coble. The gentleman's time has expired. The gentleman 
from Virginia.
    Mr. Goodlatte. I thank the Chairman. Mr. Chairman, I 
appreciate very much the sentiments expressed by the gentleman 
from North Carolina, but the fact of the matter is if his 
amendment is adopted, which guts the entire bill, then the 
legislation will indeed do as he says, achieve nothing.
    What the legislation will achieve now is to have the effect 
of very, very strongly discouraging, as I think the gentleman 
from New York has noted earlier, communities from taking the 
chance of taking private property for private economic 
development purposes. Some of the things the gentleman 
described that had occurred in his home city would be prevented 
by this. Some would not.
    And the purpose of the bill is not to reverse the provision 
in the Constitution, which recognizes that you can take private 
property for public uses with just compensation. It is to say 
that when the Court defines what that private purpose is to 
mean simply increasing the amount of tax revenue for the 
community that that goes well beyond the meaning of public use. 
And we put the exercise and use of eminent domain back where it 
properly is.
    I urge my colleagues to defeat this amendment. It would 
simply gut the bill.
    Mr. Coble. The gentleman yields back. The question occurs 
on the----
    Ms. Lofgren. Mr. Chairman? Mr. Chairman?
    Mr. Coble. The gentlelady from California.
    Ms. Lofgren. I move to strike the last word.
    Mr. Coble. The lady is recognized for 5 minutes.
    Ms. Lofgren. I want to speak in favor of the amendment, 
and, you know, I disagreed with the Kelo decision. And I've 
actually seen in my own community what I think is very 
questionable use of eminent domain where private property 
owners are removed and then other private property owners are 
given the property and benefit. And I think most people in my 
community disagree with that. I disagree with it.
    But the question is, where is the appropriate remedy? The 
Kelo case outlined the maximum really that localities could go, 
but it doesn't mean the localities should go there. And the 
real question I've been struggling with is whether this is 
something that States ought to take up or whether it's 
something the Federal Government ought to insert itself into.
    Every condemnation is done pursuant to a statute, and I may 
be the only Member of the Committee that's actually voted to 
condemn property when I was in local government to build--or 
maybe others did, too--but to build highways and the like. 
There is an appropriate case to be made if you're building a 
highway, as we built, you know, 60 miles of interstate highway, 
you have--we had to condemn some land to do that, and I think 
everybody understood that.
    But I don't think this is drafted well, to be honest. And I 
think there's going to be a lot of questions about it. I was 
going to offer an amendment about public non-profit housing or 
affordable housing, and I now realize I don't even need to 
offer that amendment because that's going to be--fall into the 
exception here.
    So I really think that a strong condemnation of this 
activity is warranted, and encourage States to do the right 
thing might be the better approach.
    I think that this bill, although I'm sure well intentioned, 
is going to lead to a lot more litigation and lot more 
confusion than is even the current case, and that's why I 
support the gentleman's amendment, even though I oppose the 
kind of condemnation that was permitted in the Kelo decision.
    And I yield back.
    Mr. Coble. The gentlelady yields back. All the----
    Mr. Nadler. Mr. Chairman? Mr. Chairman?
    Mr. Coble. The gentleman from New York.
    Mr. Nadler. Thank you. I'll be very brief.
    I agree with the gentlelady from California. I think the 
problems we're getting into in this bill and the problems that 
are highlighted by Mr. Goodlatte's amendment that we'll be 
considering in a few minutes are showing that the distinctions 
that we think are clear cut between private and public are not 
so clear cut; that public utilities, for instance, which we 
think of as public utilities now under deregulation don't want 
to be common carriers anymore, and we'll talk about this under 
Mr. Goodlatte's amendment, but they're partaking more and more 
the character of private enterprises, and why should we give an 
exemption to this private enterprise to that private stadium, 
but not to that shopping center.
    And I'm not sure--I thought when I started this meeting 
that this bill could be reworked and that we could have better 
definitions and so forth. And that's why I offered some of my 
amendments.
    But as I'm listening to the discussion, I'm not sure that's 
really feasible. And maybe what the gentlelady suggested is 
right. Maybe we should simply have a strong Sense of Congress, 
and let the State legislatures work it out, and be the 
laboratories of democracy that we always talk about and not use 
the heavy hand of the Federal Government to say do it this way, 
especially when exactly what we mean by this way is very 
difficult to ascertain. So I support the gentleman's amendment.
    Mr. Watt. Would the gentleman yield?
    Mr. Nadler. Sure.
    Mr. Watt. Just for a second. Mr. Chairman, Mr. Scott has 
pointed out to me that there's a wrong page reference in my 
amendment, so I ask unanimous consent on the second line of my 
amendment to change the number six to the number eight.
    Mr. Coble. Without objection.
    Mr. Watt. Page number. Yeah.
    Mr. Nadler. I yield back.
    Mr. Coble. The gentleman yields back.
    Ms. Waters. Mr. Chairman?
    Mr. Coble. The gentlelady from California.
    Ms. Waters. I move to strike the last word.
    Mr. Coble. The gentlelady is recognized.
    Ms. Waters. Let me oppose the amendment because I think if 
you have no punishment, no enforcement, and simply a Sense of 
Congress, that you're going to end up with these entities doing 
exactly what they want to do. I think that it is generally 
understood or accepted, you know, throughout this country, that 
eminent domain for public use is acceptable. And the citizens 
have a right to oppose it, and to the degree that citizens are 
not aware of their rights, or they don't feel powerful enough 
to fight City Hall, they do get run over. And that happens in 
many poor communities and minority communities.
    When eminent domain for the taking of private property for 
private use hits a better off community, a more well-financed 
community, they fight it. That's why you have this case that 
wound its way up to the Supreme Court.
    And so I think that when you start to make exceptions, 
that's where you get in trouble.
    It should be straightforward, and eminent domain for public 
use, as it is understood, should remain. This bill should not 
in any way try to deal with that. This bill should simply say 
that there should be no taking of private property for private 
use and we should have the sanctions in the bill to say if you 
do it, you can't get any Federal money, and if you return it in 
2 years and make the person whole that you took it from, then 
you will be eligible again. That's all the bill should do.
    Mr. Watt. Will the gentlelady yield?
    Ms. Waters. Not yet.
    When you start to list what you think is acceptable--and 
much of it is redundant because it is already acceptable for, 
you know, public use--but you really get into trouble when you 
start to list these exceptions that really protect certain 
developments and allow them to be used for private use. That's 
where you get in trouble. You can't have it both ways.
    If you respect property rights and you want to protect 
property rights, you will be straightforward with it, and you 
would simply say no taking of private property for private use, 
period. That's all you have to say.
    You don't have to list any exceptions. You don't have to 
talk about protecting public developments. That's already 
protected in law and in the Constitution.
    So if there's any altering of the bill or amending the 
bill, I think that the amendment that I offered right in the 
beginning would take care of all of this. We wouldn't even be 
in this discussion. It's only when you try to have it both ways 
and you want a little bit of room so that some private takings 
can be okay for private use. That' when you get into trouble.
    And, yes, I'll yield to the gentleman from North Carolina.
    Mr. Watt. I thank the gentlelady for yielding.
    The problem I have with the approach, though, is that 
leaves you able to condemn properties still for the removal of 
blight. That's a public purpose.
    Ms. Waters. No.
    Mr. Watt. And--isn't it?
    Ms. Waters. No.
    Mr. Watt. Well, I don't think there's anything in this bill 
that's going to change that. It is generally forever and a day 
as long as I've known been a public purpose that the removal of 
blight is a public purpose.
    So here's where you're going to end up unless you deal with 
this, you give people--give public local governments the right 
to condemn for the removal of blight, but then there's no way--
so then you have all this property sitting in the middle of our 
neighborhoods vacant and empty and nothing can be done with it 
because unless the city or the local government is going to 
build a retail establishment, you can't go into any kind of 
public-private partnership under that arrangement. You don't 
want the city to start going into business enterprise.
    So then all you can do is take the property and let it sit 
there vacant.
    Ms. Waters. Reclaiming my time. I think that what you have 
described is an extended definition and understanding of the 
taking of private property for public use. That is not the 
accepted definition of the taking of private property under 
eminent domain laws.
    And you will not find that it is used in that manner 
consistently throughout this country. It is only--that is only 
attempted in places where people don't fight back and people 
don't understand what the generally accepted definition is of 
the taking of property.
    Mr. Coble. The gentlelady's time has expired. The question 
occurs on the Watt Amendment. All in favor say aye.
    Mr. Scott. Mr. Chairman, I move to strike the last word.
    Mr. Coble. The gentleman from Virginia is recognized for 5 
minutes.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I support 
the amendment, and I'm opposed to the underlying legislation, 
which is the response to the Kelo decision.
    By enacting this legislation, we're undermining State's 
rights and assuming the role of City Council.
    The fact that Members of Congress disagree with the 
decision of a locality in this regard is not--does not mean 
that we should change Federal law. So we should not create a 
Congress prerogative to either encumber the rights of States or 
their political subdivisions to make such decisions--when they 
make such decisions or penalize them for decisions that are 
theirs to make.
    Mr. Chairman, even if we disagree with the judgment of the 
local elected officials, we should not change the law. We're 
elected, Mr. Chairman, as Members of Congress, not members of 
local City Councils.
    Mr. Chairman, it is impossible for Congress to draw a 
bright line separating those cases in which economic 
development is appropriate for a particular area and when it is 
not.
    This is for the local City Council to determine. Economic 
development is a process, clearly distinct from simply taking 
property from person A and giving it to person B for a 
``commercial enterprise carried on for profit.'' Trying to 
define it either affirmatively or through exclusions would 
either result in an overbroad or under inclusive result.
    It would be impossible for Congress to define economic 
development so that it covers situations we want it to cover, 
such as the condemnation to eliminate blight, whatever that is, 
in an essentially deserted area to create an industrial park 
and not cover instances that we would not want to cover, such 
as taking the home of a woman who was born in the house, lived 
there all here life, and raised her children there to build a 
hotel.
    It is not our job to do so. The needs of a particular 
community and the government interest in taking over rights of 
individual property owners are a balance that we must leave to 
the localities. We have to entrust individual localities to use 
good judgment in assessing their own needs, and sometimes it 
might mean taking the property for the purpose of economic 
development; sometimes it might not; sometimes we will agree, 
and sometimes we're not going to agree.
    But I can't think of anymore fitting example than we've had 
this discussion is that the D.C. stadium issue. I find it 
ironic that at the same time we're making up this bill, 
Washington, D.C. is using eminent domain to build a baseball 
stadium. And just listen at the result.
    Depending on how the title of the stadium is held, it might 
be okay or not okay. If they soak the public for $300 million 
to build the thing, well, that would be okay.
    If the owner decides to build it on his own, then he can't 
use eminent domain. You can go around the country and see all 
different kinds of ways that stadiums are built; some with a 
little private ownership; some public-private--all kinds of 
different ways. Some could have used eminent domain under this 
bill. Some could not.
    The fact is, Mr. Chairman, that the World Trade Center and 
the Lincoln Center in New York, the Baltimore Inner Harbor, 
President Bush's stadium in Houston were all made possible by 
taking for purpose of economic development, and they all used 
eminent domain. We can agree or disagree whether these should 
have--whether they provide a benefit for their communities, but 
we should I think agree that those projects should not have 
been rendered illegal as they would be under this bill.
    Sitting here in Washington, on Capitol Hill, we should not 
have the final say on projects such as these nor should we be 
enacting legislation to punish States or their political 
subdivisions by withholding Federal funds or determining which 
projects can go forward, and which cannot.
    Mr. Chairman, if we cannot leave eminent domain to the 
States, then we ought to concentrate on the root issues that 
upset people, such as the lack of a guarantee for just 
compensation, including replacement costs, not just technical 
appraised value, relocation expenses for owners, as well as 
tenants, whether it's in residential or commercial context.
    The bill does nothing to ensure that displaced individuals 
receive not only reasonable replacement value, but compensation 
for goodwill of businesses and due consideration for the length 
of time a family or business has been in the particular area.
    And there's nothing in the bill to deal with the fact that 
victims of eminent domain are usually poor and minority. Let's 
put some protection in eminent domain to protect the poor and 
minorities from abuse. There's nothing in the bill to do that.
    I'd like to submit, Mr. Chairman, letters from the National 
League of Cities and the National Conference of State 
Legislatures, which not surprisingly opposed the legislation, 
and, Mr. Chairman, I agree with their assessment that the 
decision of when property should be taken and when it should 
not should be made at the local and State level, not on a 
congressional level in the abstract. And, Mr. Chairman, I ask 
unanimous consent for those letters to be entered into the 
record.
    Mr. Coble. Without objection.
    [The information follows:]
    
    
    Mr. Scott. And I yield back the balance of my time.
    Ms. Jackson Lee. Mr. Chairman? Mr. Chairman?
    Mr. Coble. All right, Mr. Scott. Folks, I'm going to try 
one more time.
    Ms. Jackson Lee. Mr. Chairman?
    Mr. Coble. I failed again. The gentlelady from Texas.
    Mr. Coble. For what purpose does the gentlelady seek 
recognition?
    Ms. Jackson Lee. I ask to strike the last word.
    Mr. Coble. The gentlelady is recognized.
    Ms. Jackson Lee. I thank the Chairman very much for his 
indulgence. I think the overwhelming impact, or the shocking 
impact, of the recent Supreme Court decision causes the need 
for the debate on this question. I am quarreling with the 
underlying bill, which I happen to be a co-sponsor of, but I'm 
not quarreling with the premise. And that is that, in spite of 
my good friends, the State Legislators and the National League 
of Cities, which I've served as a member of the board as a 
member of the Houston City Council, I do think that there is a 
need for a strong statement to be made on behalf of the United 
States Congress.
    The act of the Supreme Court was egregious as it relates to 
the Kelo decision. It made a statement that they could take, 
without due process, private property for a public use, in this 
instance economic development. I am concerned, as the 
gentlelady from California has so noted, the chronicling of 
exceptions, and there is a long list. I'm probably going to 
support the underlying bill so that it can make its way through 
to the floor of the House, and then hopefully have some sort of 
effective discussion between the House and the Senate.
    With respect to my colleague from North Carolina, I'm not 
sure if the best approach is to retain only a sense of 
Congress, because, as I said, I think that the decision was 
egregious enough, I guess, from the perspective of so many that 
it warrants an effective response. This bill may not be the 
best response because it delineates a number of exceptions 
which may add more confusion than what we have now.
    One of the other elements that I'd like to raise, and I 
join with the comments that have been made that there are no 
protections against communities--or for communities who would 
have their property taken on the pretense of eliminating 
blight. And I raise this issue because we have a serious 
concern to address with respect to the Hurricane Katrina 
survivors and those who have left properties in Mississippi, 
Alabama, and Louisiana. Now Wilma has waged a devastating 
impact. We know that the eyes of the culprits, economic 
developers--visionaries, allegedly--are eyeing the properties 
of those in New Orleans.
    One of the things that poor people do not understand, and I 
do not know the Louisiana property laws, is that the house may 
be lost but you may have some vested interest, and should have 
some vested interest in the plot of land. If that is the case, 
then they're going to be subjected to massive eminent domain or 
the taking, under the pretense that their property is untenable 
and not viable to be rebuilt because of where it is, or that it 
is for the betterment of New Orleans to rebuild it as a 
fabulous resort city.
    So I am concerned that this bill does not--and it was 
obviously written, maybe, before Hurricane Katrina, but we're 
now taking it up in the midst of it--does not take into 
consideration the needs of those populations, the needs of 
impoverished people, the concerns about blight, because those 
of us who have lived in blighted neighborhoods, grown up in 
blighted neighborhoods, we know that our areas have been 
encroached upon and many of our homesteads that we grew up in 
don't exist anymore, because it was unsightly to some and it 
was a prime area to take over, such as what is happening in 
Anacostia today in Washington, D.C.
    So I would just simply to proponent Mr. Goodlatte and Mr. 
Sensenbrenner--Mr. Goodlatte, I see that you've kept the rule 
protection in, but I raise this concern with you because I do 
think that this legislation could have been less riddled with 
exceptions and we could have made our point very clear in 
following the sort of simplicity of the gentlelady from 
California's point, get right to the point of what we want to 
do, is to protect people from having their private property 
condemned for private use. And I think that's a simple state of 
affairs that we could have written in this bill and left to the 
local jurisdictions their way of complying with that Federal 
law. And believe me, they would have been able to build 
whatever they wanted to build, to build whatever hospitals, 
whatever public schools, with that kind of legislation. But 
they would not have been able to come and build a waterfront, a 
beautiful waterfront, and taking people's properties or other 
kinds of properties to take for someone else's pretty 
development.
    And that's the difficulty I have with this legislation and, 
as well, my concern with the amendment that is now before us.
    I yield back.
    Mr. Coble. The gentlelady yields back. For what purpose 
does the gentleman from California seek recognition?
    Mr. Lungren. Strike the requisite number of words.
    Mr. Coble. You will be recognized for 5 minutes.
    Mr. Lungren. Mr. Chairman, I have to respond to the 
comments by my friend from Virginia, who basically is asking us 
why are we here and what are we doing with this. He suggests we 
don't need to do anything.
    I would just refer as to the words in the dissent in the 
Kelo case in which the dissent made the point that as a result 
of the majority's decision, now any property may now be now be 
taken for the benefit of another private party. But the fallout 
from this decision will not be random. The beneficiaries are 
likely to be those citizens with disproportionate influence and 
power in the political process, including large corporations 
and development firms. As for the victims, the Government now 
has license to transfer property for those with fewer resources 
to those with more. And then they say the Founders cannot have 
intended this perverse result.
    Now, I remember the words of the minority leader, I think 1 
or 2 days after the Kelo decision, when asked whether Congress 
ought to act, and she said no, and she looked at the Kelo 
decision, in her words, It was as if God has spoken. There are 
some of us who don't believe the Supreme Court speaks as if it 
has divine intervention powers. And yet, the influence of that 
decision, Kelo, is to essentially give free rein to local 
communities to violate what many of us think is the original 
intent of the Founders when they enacted this provision in the 
Constitution.
    This simply says that to the extent we in this branch of 
Government, the Federal branch of Government, can influence 
whether or not we are going to distort the meaning of the 
Founders in the original sense, that we can act and say that 
Federal dollars will not be used for this purpose. That's 
solely what we are doing. If they want to make other decisions 
at the local level, they are perfectly entitled to do that 
using their own money. And they can say, We make the decision 
that we're going to expand the idea of how we can take property 
from private people and use it for economic purposes, and we 
are so sure of our position there that not only do we believe 
that our constituents will support us, but we don't need 
Federal funds to do it.
    And that's simply all we are doing. It is our only ability 
to respond to the Supreme Court decision, which roundly was 
seen as an aberration, I would say. I've never seen such 
condemnation on both Democrat and Republican sides. And to 
those who say, you know, it took something like this to wake up 
some on our side as to the abuses that have taken place in the 
past, if that's a criticism, I'll accept that criticism. But it 
doesn't render the essential analysis as inappropriate or 
ineffective or without content.
    Frankly, I didn't think we'd ever see a day when the 
Supreme Court would go this far and give such wide parameters 
to abuse in this area of the Constitution. And for that reason, 
I think it's an imperative that we act on this bill and we act 
on this bill now, and we not gut this bill with amendments 
which render the bill ineffective.
    Ms. Waters. Will the gentleman yield?
    Mr. Lungren. I'd be happy to yield to my friend from 
California.
    Ms. Waters. Well, you know, essentially I agree with you 
and everything that you have said. I feel the absolute same 
way. And this decision I think was one of the most stunning 
decisions I've experienced. And so I don't understand, then, 
given that we both think that way, why you would accept any 
exceptions in this bill, to the taking of private property for 
private use. Why would you agree that there should be some 
exceptions?
    Mr. Lungren. I don't believe that I would consider these 
exceptions in the definitional sense. Rather, we are 
establishing bright lines between that which is public use and 
that which is not public use. And it seems to me if we have 
missed some, we can go back and we can look at that. With the 
question of stadia that people have talked about in terms of 
private stadia and public stadia, I think we've gone far enough 
here. At the same time, I would look at what I think are the 
abuses right now in terms of bonds and tax exempt bonds used 
for what essentially are private purposes in some of these 
stadiums. But that's a different issue, and I don't think we 
ought to confuse it here.
    And I thank the gentlelady for her comments, and it is nice 
to see that we can agree on something.
    Ms. Waters. Almost.
    Mr. Lungren. Well, I think we're both going to vote for the 
bill.
    Mr. Coble. Mr. Watt, I was going to try one more time on 
your amendment, but I see the gentleman from Alabama wants to 
be recognized, and the chair recognizes him.
    Mr. Bachus. Mr. Chairman, there's one thing that's been 
said today that----
    Mr. Coble. For what purpose does the gentleman seek 
recognition?
    Mr. Bachus. I beg your pardon?
    Mr. Coble. For what purpose does the gentleman seek 
recognition? Strike the last word?
    Mr. Bachus. Strike the last word.
    Mr. Coble. The gentleman is recognized for 5 minutes. 
[Laughter.]
    Mr. Bachus. Mr. Chairman, one thing that has been said 
today that we need to be very careful about, and we've talked 
about railroads. In this country since we started building 
railroads in the 1820's, we have known that railroads, although 
they were private companies in many cases, most cases, now 
almost all cases, that they were constructed for the public 
benefit. And today railroads--and I'm not talking about Amtrak, 
I'm talking about private freight railroads. Shippers will tell 
you today, in fact shippers all over the country urge a lot of 
times that a railroad be built so that they can have two 
different sources to ship their goods on. We could not ship 
agriculture goods in this country without our railroads. And 
coal. We couldn't heat our homes. The lights in this building 
are dependent on railroads. Every water system, clean drinking 
water is dependent on the railroads because the railroads ship 
99 percent of your chlorine.
    And for that reason, as we talk about private use, I hope 
that we will remember that whether it's bringing coal from the 
West to the East or whatever, that taking land for railroads is 
really a traditional use.
    Mr. Nadler. Will the gentleman yield?
    Mr. Bachus. And the reason railroads, you know, not barges, 
because, you know, our barges are on navigable waterways, we 
provide those paths. Airports, we build airports. Even though 
there are private airplanes, I hope we're not going to say here 
that because it's private companies that land at those 
airports, we're going to continue--seize lands for the 
airports.
    Mr. Nadler. Would the gentleman yield on that point?
    Mr. Bachus. I will.
    Mr. Nadler. I agree with the gentleman. I would point out 
that under a reading of the bill, and I don't know how a court 
would come out, if you look at page 8, where it exempts certain 
things from the provisions of the bill, it says ``conveying 
private property to public ownership, such as for'' various 
things, ``that makes the property available for use by the 
general public as of right, such as a railroad, public 
utility'' et cetera, I would read that to mean a passenger 
railroad, because the passenger railroad is a common carrier 
and anybody can get on it, whereas a freight railroad such as 
you're talking about operates by contract, and doesn't have to 
accept any shipper.
    Mr. Bachus. We've used as one example of what we would or 
wouldn't do, where we would seize private----
    Mr. Nadler. What I'm saying, sir----
    Mr. Bachus.--private property for a private industry. We've 
always done that----
    Mr. Nadler. No, no, I'm agreeing with you. What I'm saying, 
sir, is that as I read this bill, that would change. And a 
passenger railroad would be exempted from the provision of the 
bill, but a freight railroad that operates by contract might 
not be exempted, as you and I would both wish.
    Mr. Goodlatte. Would the gentleman yield?
    Mr. Bachus. I would yield.
    Mr. Goodlatte. I thank the gentleman for yielding. There is 
no difference. Both a private freight railroad and a private 
passenger railroad are common carriers under the law and----
    Mr. Nadler. Oh, that's true.
    Mr. Goodlatte.--completely exempted under this language.
    Mr. Bachus. If it says ``common carrier,'' that includes 
our freight----
    Mr. Scott. Will the gentleman yield?
    Mr. Bachus. I think my time is up. I will yield if I have 
any time.
    Mr. Coble. The gentleman has 1 minute left.
    Mr. Bachus. I'll yield to the gentleman from Virginia.
    Mr. Scott. I point out that the requirement under the law, 
with or without the Supreme Court decision or with or without 
the bill, has to be public benefit. And we've heard that the 
stadiums may count and may not. I guess it depends on if the 
skyboxes are publicly auctioned rather than you can pick and 
choose. You might lose your exemption under this. Industrial 
parks are clearly private, but there'd be something that the 
city council might want to use eminent domain to put together 
an industrial park. But it has to be public benefit. And that 
doesn't change under this amendment. You still have to have 
public benefit.
    Mr. Bachus. Again, let me just summarize again. I just, as 
we continue to use examples, I hope we'll leave the railroads 
out, because it's not a good example.
    Mr. Coble. Does the gentleman yield back?
    Mr. Bachus. And I yield the balance of my time.
    Mr. Coble. Folks, before the Watt amendment expires, I want 
to call the question on the Watt amendment.
    All in favor, say aye?
    Opposed, no?
    It appears the noes have it. The noes have it, and the 
amendment fails.
    Are there additional amendments?
    Mr. Cannon. Mr. Chairman?
    Mr. Coble. The gentleman from Virginia, Mr. Goodlatte. Then 
I'll get you next, Mr. Cannon.
    Mr. Goodlatte. Thank you, Mr. Chairman. I appreciate the 
gentleman from Utah forbearing, but while we're talking about 
this particular section of the bill, I do want to offer an 
amendment, which I have at the desk. Amendment number 1.
    Mr. Coble. The clerk will report.
    The Clerk. Amendment to H.R. 4128, offered by Mr. 
Goodlatte.
    Mr. Coble. Without objection, the amendment will be 
considered as read.
    [The amendment offered by Mr. Goodlatte follows:]
    
    
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    This is an amendment that makes it clear that a public 
utility, which is commonly understood as a type of common 
carrier, Black's Law Dictionary, for example, defines public 
utility as follows: A company that provides necessary services 
to the public, such as telephone lines and service, 
electricity, and water. A person, corporation, or other 
association that carries on an enterprise for accommodation of 
the public, the members of which are entitled as a matter of 
right to use its facilities.
    The Government could take property for use as a public 
utility under the bill. This language would make that very 
clear.
    Mr. Coble. The question occurs on the Goodlatte amendment.
    All in favor, say aye?
    Opposed, no?
    It appears the ayes have it. The ayes have it, and the 
amendment passes.
    Mr. Nadler. Mr. Chairman?
    Mr. Coble. Are there additional amendments? The gentleman 
from New York, Mr. Nadler, is recognized.
    Mr. Nadler. Thank you, Mr. Chairman.
    I have the other amendment at the desk.
    Mr. Coble. The clerk will report.
    Ms. Jackson Lee. Mr. Chairman? I'm not recorded.
    Mr. Coble. The gentlelady from Texas? There's been no 
rollcall vote, Ms. Jackson Lee.
    Ms. Jackson Lee. Was that a vote?
    Mr. Coble. Voice vote.
    Mr. Nadler. It's not the final passage?
    Mr. Coble. No.
    Ms. Jackson Lee. Okay. Thank you.
    The Clerk. Amendment to H.R. 4128, offered by Mr. Nadler. 
Page----
    Mr. Coble. Without objection, the amendment will be 
considered as read.
    [The amendment offered by Mr. Nadler follows:]
    
    
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Nadler. Thank you.
    Mr. Chairman, there's a problem, I believe, in the bill 
that says--if you look at the bottom of page 3, section 4(b), 
it says ``Limitation on bringing an action. An action brought 
under this act may be brought if the people is used for 
economic development following the conclusion of any 
condemnation proceedings condemning the private property of 
such property owner, but shall not be brought later than 7 
years following the conclusion of any such proceedings and the 
subsequent use of such condemned property for economic 
development.''
    Now, I'm not sure how that is supposed to be read, whether 
it means you can't bring it more than 7 years after the 
conclusion of the condemnation proceedings or more than 7 years 
after the subsequent use of such condemned property for 
economic development, 10 or 12 years after the conclusion of 
the condemnation proceedings.
    But regardless of that question, this holds open--Mr. 
Goodlatte, I hope you listen to this--this holds open the 
possibility of a lawsuit, whose successful conclusion would 
deprive the city or the State or whoever of Federal funds for 2 
years, for years--either 7 years or perhaps longer, depending 
how you read that, after the condemnation proceedings if--if 
the land that is condemned, ostensibly for public use, is later 
used for a private use.
    Now, let me give you an example. Suppose that a city 
decides to build a 5-mile-long subway line and condemns 
property for that public purpose. And 10 years later, they 
determine they only have the funds to complete 3 miles of the 
line. So the land that they've condemned for one or two stops 
along the line is never going to be used. So they're now with a 
piece of surplus property that was supposed to be used for a 
subway stop, but the line stopped short of that. So now they're 
going to sell it for a private purpose.
    Well, they would seem to be subject now to a lawsuit. So 
what this amendment says is that you shall not be subject to 
the lawsuit if the property were condemned in good faith for a 
public use, as defined in the act, and is subsequently used 
later because of a change in circumstances not reasonably 
foreseeable at the time of the condemnation for other purposes, 
for private economic development.
    In other words, you condemn land in good faith for a public 
use, later something happens that was not foreseeable, and it 
results in your using that land--selling it for private 
economic development, you should not hold the city or State 
open for 7 years or longer to losing 2 years of Federal aid 
then. It doesn't serve the purpose of the bill and it really 
puts a cloud on all the city finances for the future.
    Mr. Conyers. Mr. Chairman?
    Mr. Nadler. So I urge the adoption of the amendment and I 
yield back.
    Mr. Goodlatte. [Presiding] I thank the gentleman. The chair 
recognizes himself in opposition to the amendment.
    I appreciate the gentleman's concern and the circumstances. 
However, the phrases that are used in this amendment--``good 
faith,'' ``reasonably foreseeable''--move us back in the 
direction of the Kelo decision of giving too much discretion to 
the courts to determine what we're talking about. And I would 
strongly oppose it just because those are very, very subjective 
terms. What we're trying to address here are specific uses that 
we're allowing, and that's where the language in the bill is 
headed. If we were to adopt this amendment, we would be moving 
back toward a situation where the court would be able to 
determine what indeed good faith is, what indeed reasonably 
foreseeable is.
    I would yield to the gentleman.
    Mr. Nadler. Yes, the court would have to determine that. 
But if you don't do this, if you don't do this, then you're 
leaving open any city or State to a real problem in case 
something happens. You can't foresee everything. And again, let 
me give you that example.
    Ms. Waters. Will the gentleman yield?
    Mr. Nadler. No, I won't yield for the moment. In good 
faith----
    Mr. Goodlatte. I have the time, so----
    Mr. Nadler. Oh.
    Mr. Goodlatte. I will allow the gentleman to make his 
point, then I will yield to the gentlewoman.
    Ms. Waters. Thank you.
    Mr. Nadler. But in good faith, there is a public purpose, 
something subsequently changes years later. You have to allow 
for some flexibility.
    Ms. Waters. Will the gentleman yield?
    Mr. Goodlatte. Reclaiming my time, I will say to the 
gentleman I would have to oppose this amendment. I would be 
happy to work with the gentleman on the matter that he is 
concerned with, but I cannot support this amendment.
    I yield to the gentlewoman.
    Ms. Waters. Thank you. And I would agree with you, Mr. 
Chairman. If in so-called good faith private property is taken 
and then it is not used, this bill is designed to give it back 
to the people you took it from, not to talk about, Oh, now I 
can use it for something else. So I would oppose the amendment.
    Mr. Conyers. Mr. Chairman?
    Mr. Goodlatte. The gentleman from Michigan is recognized 
for 5 minutes.
    Mr. Conyers. Well, I won't need 5 minutes because I don't 
want States and cities to get into the habit of taking property 
for a public purpose and then later deciding, intentionally or 
unintentionally, that they need to use it for economic 
development. To allow them to use condemned property for 
economic development, so long as it was taken originally in 
good faith, is, I say to my friend from New York, a bit of a 
stretch. And I think it goes away from the concept that many of 
us here, and certainly I as a proponent of the measure before 
us, we want to tighten this thing up. And I'm not sure if that 
does it. And I reluctantly oppose the amendment of my friend 
from New York.
    I return the balance of my time.
    Mr. Goodlatte. The question occurs on the amendment offered 
by the gentleman from New York.
    All those in favor, respond by saying aye?
    Opposed, no?
    In the opinion of the chair, the noes have it and the 
amendment is not agreed to.
    Are there further amendments?
    Mr. Cannon. Mr. Chairman?
    Mr. Goodlatte. The gentleman from Utah.
    Mr. Cannon. There are two amendments at the desk under the 
name of Mr. Flake that I would like to offer en bloc.
    Mr. Goodlatte. The clerk will report the amendments.
    The Clerk. Amendment to H.R. 4128, offered by Mr. Cannon. 
Page 9, line 10, insert ``or through'' after ``distributed 
to.''
    Amendment to H.R. 4128, offered by Mr. Cannon. Add at the 
end the following:
    Mr. Goodlatte. Without objection, the amendments will be 
considered as read. And the chair seeks unanimous consent for 
the amendments to be considered en bloc.
    There being no objection, the amendments will be considered 
together.
    [The amendments offered by Mr. Cannon follow:]
    
    
    Mr. Goodlatte. The gentleman from Utah is recognized for 5 
minutes.
    Mr. Cannon. Thank you, Mr. Chairman.
    In this legislation we're trying to prohibit Federal funds 
being distributed to States or political subdivisions from 
being used for eminent domain for economic development. That 
does not prevent Federal funds from being passed through States 
or political subdivisions for such uses. By inserting, in the 
first--the short amendment, ``or through'' after ``distributed 
to,'' we clarify that Federal funds would not be able to be 
funneled by a State or County to another political subdivision 
to circumvent the principles of this legislation. And I urge 
the Committee to adopt that portion of the en bloc amendment.
    The second amendment, the longer amendment, clearly states 
that the policy of the United States to protect and promote 
private property rights is prescribed under the United States 
Constitution. Beyond the Kelo decision, we are confronted with 
the problems our Government has in protecting private property 
rights in our country, especially in the West. Prior to the 
Kelo decision, the Supreme Court rulings had reaffirmed private 
property rights but also ruled that Government actions other 
than condemnation may result in taking, for which compensation 
is required. Over 80 percent of Mr. Flake's home State, 
Arizona, and over \2/3\ of my home State, Utah, are public 
lands. And the decisions out of Washington, D.C. have 
negatively affected landowners, and just compensation for 
regulatory takings has been denied. So it is my hope that this 
amendment will send a signal to bureaucrats here in Washington 
that this Government's policy is to protect the rights of 
landowners in the United States.
    Thank you, Mr. Chairman. With that, I yield back the 
balance of my time.
    Mr. Goodlatte. Will the gentleman yield?
    Mr. Cannon. I will be happy to yield.
    Mr. Goodlatte. I have no objection to these amendments and 
would be happy to accept them, on my part. Is there further 
discussion on the amendments?
    Being none, the question occurs on the amendments.
    All those in favor, respond by saying aye.
    Opposed, no.
    In the opinion of the chair, the ayes have it. The 
amendments are agreed to.
    Are there further amendments?
    The question occurs on the motion to report the bill, H.R. 
4128----
    Mr. Chabot. Mr. Chairman?
    Mr. Goodlatte. Who seeks recognition? The gentleman from 
Ohio.
    Mr. Chabot. Move to strike the last word. I would just ask 
unanimous consent to have my opening statement entered into the 
record, and yield back.
    Mr. Goodlatte. Without objection, so ordered.
    Mr. Chabot. Thank you.
    [The prepared statement of Mr. Chabot follows:]
 Prepared Statement of the Honorable Steve Chabot, a Representative in 
  Congress from the State of Ohio, and Chairman, Subcommittee on the 
                              Constitution
    The Fifth Amendment to our Constitution provides critical 
protections that prevent the government from unlawfully seizing private 
property. There should be no doubt that the Fifth Amendment is 
essential to protecting our basic freedoms and the economic vitality of 
our nation. Yet it is a right so fundamental, that it has been taken 
for granted since the founding of our nation.
    That, of course, changed with the Supreme Courts decision in Kelo 
vs. City of New London--a decision that places all privately held 
property at risk to government seizure.
    The idea that a persons home or business can be taken by the 
government and transferred to another private entity simply to allow 
the government to collect additional tax revenue seems anathema to the 
values Americans cherish.
    However, the Supreme Court has now thrown its weight behind this 
distinctly un-American ideal by ruling that economic development can be 
a public use under the Fifth Amendment's Takings Clause. Essentially, 
the court held that private property can be taken from homeowners 
through a process called eminent domain and put to public use by a 
private business.
    Few would question that the Constitution provides a legitimate role 
for eminent domain when the purpose is a true public use and the 
property owner receives just compensation. Properly used, eminent 
domain should give communities an option of last resort to complete the 
development of roads, schools, utilities and other essential public 
infrastructure projects.
    A few weeks ago, however, I chaired a hearing in the Constitution 
Subcommittee that made it clear that eminent domain is not always 
properly used and that Kelo may further open the floodgates to abuse. 
In fact, we were told that a minimum of 10,000 properties were either 
seized or threatened with condemnation for private development in the 
five-year period between 1998 and 2002. And following the Kelo 
decision, high-profile economic development takings were on the fast 
track from Connecticut to California with judges across the country 
relying on Kelo to support government takings that forcibly transfer 
private property from one owner to another.
    As a former member of the Cincinnati City Council and Hamilton 
County Commission, I would be remiss if I did not mention my concern 
for the unintended consequences that congressional action could have on 
communities--especially struggling urban areas--throughout the United 
States. My friend from Ohio and former Mayor of the City of Dayton, 
Congressman Mike Turner, who leads the Speaker's ``Saving America's 
Cities Working Group'' has been a strong advocate for revitalizing our 
nations cities and raising these same concerns about unintended 
consequences to urban areas.
    During our hearings in the Constitution Subcommittee, Indianapolis 
Mayor Bart Peterson warned that overly broad legislation could have a 
``chilling effect'' on urban renewal efforts. He asked that Congress 
work to balance the important interests involved and recognize that the 
availability of eminent domain has led to more job creation and home 
ownership opportunities than any other economic development tool. If 
that tool vanishes, he said, redevelopment experienced in many 
communities in recent years would literally come to a complete halt.
    Now, I recognize that some of those concerns may be overstated. We 
should not lose sight of the fact that local governments have many 
different kinds of incentive, zoning, and code enforcement tools to 
promote economic development without having to resort to the taking of 
private property. However, Mayor Peterson raises some credible issues 
that we should continue to consider as we move forward with this 
legislation.
    I want to thank Chairman Sensenbrenner and ranking-member Conyers 
for their leadership on this critical issue. Many members of this 
Committee--myself included--raised concerns about a long-term assault 
on property rights in America even before the Kelo decision. Today, we 
have an opportunity to defend an important constitutional principle and 
the fundamental rights of our constituents. As Justice O'Connor wrote 
in her Kelo dissent, ``Nothing is to prevent a state from replacing any 
Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm 
with a factory.''

    Mr. Goodlatte. The question occurs now on the motion to 
report the bill, H.R. 4128, favorably as amended.
    All in favor, say aye.
    Opposed, no.
    In the opinion of the chair, the ayes have it. The motion 
to report favorably is adopted.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute incorporating the amendments adopted here today.
    Mr. Scott. rollcall?
    Mr. Goodlatte. A rollcall vote is requested. All those in 
favor of reporting the bill favorably, respond by saying--will 
respond favorably to the clerk's call of the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Lungren?
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye. Mr. Inglis?
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mr. Franks?
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye. Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Conyers votes aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Chairman, aye.
    Mr. Coble. Are there Members who wish to vote?
    The gentleman from California?
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Goodlatte. The gentleman from California, Mr. Lungren?
    [No response.]
    Mr. Goodlatte. Mr. Gohmert?
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye.
    Mr. Coble. The gentleman from Massachusetts, Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Mr. Goodlatte. The clerk will report.
    The Clerk. Mr. Chairman, there are 27 ayes and 3 noes.
    Mr. Goodlatte. And the bill is reported favorably.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute incorporating the amendments adopted here today.
    Without objection, the staff is directed to make any 
technical and conforming changes. All Members will be given 2 
days, as provided by the House rules, in which to submit 
additional, dissenting, supplemental, or minority views.
    That concludes the markup. I thank everyone for their 
participation. Without objection, the markup is adjourned.
    [Whereupon, at 6:22 p.m., the Committee was adjourned.]
                      Additional Concurring Views

    At markup, I intended to offer an amendment to this 
legislation creating an exception to the definition of 
``economic development'' for the development of affordable 
housing for low-income residents. I ultimately decided not to 
offer this amendment, however, based on my recognition, and the 
apparent recognition of my colleagues, that this bill as 
introduced does not in any way limit the ability of states and 
local governments to exercise their eminent domain powers for 
the building of affordable housing for low-income residents. In 
fact, during markup, I pointed this out and received no 
objections from my colleagues.
    The provision of low-income housing, whether by a for-
profit or a non-profit entity, should not constitute ``economic 
development'' under the definition in this bill because such 
activity constitutes neither ``commercial enterprise'' nor an 
activity designed to ``increase tax revenue, tax base, 
employment or general economic health.'' Rather, the 
development of affordable housing for low-income residents 
constitutes a traditional public purpose for which eminent 
domain powers have long been recognized. Given that this bill 
will not in any way limit the exercise of eminent domain powers 
for the development of affordable housing, I concur in the 
Committee's report.
                                                       Zoe Lofgren.
                            Dissenting Views

    We share our colleagues' concern that the Supreme Court's 
recent decision in Kelo v. City of New London \1\ could open 
the door to a dangerous expansion of the eminent domain power. 
We are also concerned that this legislation, far from providing 
a remedy for the historic abuses of eminent domain, will permit 
the sorts of injustices with which we are all too familiar 
while, at the same time, crippling local governments in the 
pursuit of their legitimate public duties. This poorly crafted 
bill, with broad, if uncertain, application, would place every 
state and locality in permanent peril, without providing the 
protection vulnerable communities need.
---------------------------------------------------------------------------
    \1\ 2005 Westlaw 1469529 (No. 04-108) (U.S. June 23, 2005).
---------------------------------------------------------------------------
    We share the unanimous conviction that private property 
should never be taken for the private benefit of another 
private person. There can be no more fundamental meaning of the 
``public use'' clause of the Fifth Amendment.\2\ The awesome 
power of eminent domain may not be exercised under our 
constitution, regardless of the extent of due process or 
compensation, if the purpose for which it is exercised is to 
benefit a private party rather than the public interest.
---------------------------------------------------------------------------
    \2\ U.S. Const. amend. V: ``nor shall private property be taken for 
public use, without just compensation'' (emphasis added).
---------------------------------------------------------------------------
    The Supreme Court's efforts to define ``public use,'' and 
Congress' legislative efforts to do so, are at the heart of 
this debate.
    While the Supreme Court has left the outer boundaries of 
the definition of ``public use'' for future cases, the 
Committee has attempted to provide a bright-line test to settle 
the issue with finality. Unfortunately, a plain reading of the 
legislation, and the debate in the Committee on its meaning, 
show that the one thing it lacks is a bright-line. What exactly 
is permitted or prohibited appears to have been unclear even to 
the proponents of the legislation, many of whom could not agree 
on the meaning of the definitions, nor could they agree on the 
policy they were attempting to enact.
    If the legislative history so far shows anything, it is 
that Congress has no clear intent, and that the language it has 
chosen is even less clear. Courts and local governments trying 
to apply the standards in this bill will encounter rules so 
convoluted, they could not hope to comply with any reasonable 
degree of certainty.
    The costs of running afoul of this legislation would be 
catastrophic. Any taking, for any project, later determined to 
have been in violation of this statute, would result in the 
loss of two years of economic development funding for the state 
or local government, even if the project received no such 
funds. This determination and penalty could arise years, even 
decades, after the original taking. The financial cloud hanging 
over the entire jurisdiction ad infinitum would disrupt every 
aspect of local governance.
    For these reasons, we believe that this legislation is not 
ready to be considered by the full House, and we respectfully 
dissent.
Takings, public works and displacement
    The history of eminent domain and displacement need not be 
fully recounted here. Suffice to say that the exercise of 
eminent domain has long fallen most heavily on the shoulders of 
poor, minority, immigrant, working class, and other communities 
lacking in political and economic power. As Hilary O. Shelton, 
Director of the NAACP Washington Bureau, told the Subcommittee 
on the Constitution:

    The history of eminent domain is rife with abuse 
specifically targeting racial and ethnic minority and poor 
neighborhoods. Indeed the displacement of African Americans and 
urban renewal projects are so intertwined that ``urban 
renewal'' was often referred to as ``Black Removal.'' \3\
---------------------------------------------------------------------------
    \3\ Oversight Hearing on ``The Supreme Court's Kelo Decision and 
Potential Congressional Responses Before the Subcomm. on the 
Constitution of the House Judiciary Committee (2005) (Statement of 
Hilary O. Shelton at 2) (Hereafter ``Shelton Testimony'').

    Mr. Shelton testified that the burden on minority 
communities has not been confined to projects involving private 
economic development of the type at issue in Kelo. Mr. Shelton 
cited a 1990 study showing that ``90% of the 10,000 families 
displaced by highway projects in Baltimore were Africans 
American.'' \4\
---------------------------------------------------------------------------
    \4\ Id. Citing Bernard J. Frieden & Lynn B. Sagalyn, Downtown, 
Inc.: How America Rebuilds Cities 29, (1990).
---------------------------------------------------------------------------
    In his seminal work on urban political power, The Power 
Broker, Robert Caro reports:

    [D]uring the seven years since the end of World War II, 
there had been evicted from their homes in New York City for 
public works * * * some 170,000 persons. * * * If the number of 
persons evicted for public works was eye-opening, so were 
certain of their characteristics. Their color for example. A 
remarkably high percentage of them were [African American] or 
Puerto Rican. Remarkably few of them were white. Although the 
1950 census found that only 12 percent of the city's population 
was nonwhite, at least 37 percent of the evictees * * * and 
probably far more were nonwhite.\5\
---------------------------------------------------------------------------
    \5\ Robert Caro, The Power Broker 967-8 (1974).

    The record indicates that, in addition to the impact on 
property owners and their communities, families and small 
business who rent rather than own property suffer displacement 
often without compensation or a right to contest their 
displacement.\6\ These burdens, whether for classically public 
projects, or for economic development projects, fall most 
heavily on those who can least afford the burden. As Mr. 
Shelton observed, ``even if you dismiss all other motivations, 
allowing municipalities to pursue eminent domain for private 
development as was upheld by the U.S. Supreme Court in Kelo 
will clearly have a disparate impact on African Americans and 
other racial and ethnic minorities in our country.'' \7\
---------------------------------------------------------------------------
    \6\ Renters are often innocent, and powerless, bystanders in this 
process. In poorer communities, absentee slum-lords have rights denied 
to their tenants.
    ``Eminent domain is a vitally important tool. It is a power that 
can be abused, as the painful experience in Boston's West End reminds 
us. But Boston is also a place where eminent domain has been used 
creatively. Consider the experience of the Dudley Street Neighborhood 
Initiative, which has enabled a low-income community in Roxbury to 
reclaim its future. The community confronted a serious problem. 
Absentee owners held decaying properties that stood in the way of 
redevelopment plans. The initiative lobbied the city to give it the 
power of eminent domain. The result of this public/private partnership 
has been a widely acknowledged improvement in the neighborhood.
    David J. Barron and Gerald E. Frug, Make Eminent Domain Fair for 
All, Boston Globe, August 12, 2005.
    \7\ Shelton testimony, at 2-3.
---------------------------------------------------------------------------

The penalty is disproportionate and threatens city and State financial 
        solvency

    H.R. 4128 would impose a penalty on any jurisdiction out of 
all proportion to the harm, or even the offending project, 
involved. It would extend not just to those projects receiving 
federal economic development assistance, but to any activity by 
a state or local government, including those receiving no 
federal funds of any kind.\8\ Similarly, all economic 
development funds, including those having nothing to do with 
the project in question, would be lost to the state or local 
jurisdiction for two years. Unquestionably meritorious public 
projects, even those that do not use eminent domain, would lose 
funding. Because of the catastrophic loss of federal funds, the 
municipality would face bankruptcy, endangering all municipal 
functions.
---------------------------------------------------------------------------
    \8\ ``No State or political subdivision of a state shall exercise 
its power of eminent domain * * * if that state or political 
subdivision receives Federal economic development funds during any 
fiscal year in which it does so.'' H.R 4128, Sec. 2(a).
---------------------------------------------------------------------------
    The jurisdiction would appear to face an open-ended risk of 
this expansive penalty. A property owner would have seven years 
from the conclusion of a condemnation proceeding to bring an 
action alleging a violation of the Act.\9\ The Act would allow 
such an action to be brought for an additional seven years 
following ``the subsequent use of such condemned property for 
economic development'' \10\
---------------------------------------------------------------------------
    \9\ H.R. 4128, Sec. 4(b).
    \10\ Id.
---------------------------------------------------------------------------
    This would appear to leave the jurisdiction open to legal 
attack, and expansive penalties, years, perhaps decades, after 
the initial development. If, at any time in the future, any 
portion of an otherwise permissible development is put to a 
prohibited use, an action may be commenced within seven years. 
There appears to be no point beyond which a jurisdiction could 
consider other uses of land without risking potentially 
catastrophic legal and financial exposure.
    Once the property is taken, the jurisdiction's only 
recourse would be to return the property and ``replace[ ] any 
other property destroyed and repair[ ] any other property 
damaged as a result of such violation.'' \11\ If this means 
what it appears to say, the government would be forced to clear 
the property previously taken, and restore any structures, 
including homes, to their previous condition. It does not 
specify how the subsequently vested rights of other parties are 
to be handled. A jurisdiction could conceivably be required to 
raze a half-acre plot in the middle of a multi-acre development 
and rebuild a home in order to protect the public fisc.
---------------------------------------------------------------------------
    \11\ Id. Sec. 2(c).
---------------------------------------------------------------------------
    This unpredictable, open-ended, and substantial financial 
exposure would be faced by any jurisdiction exercising eminent 
domain with respect to even one property. It would be a risk so 
great that cities would lose their ability to issue bonds. 
States would face whatever liability might be imposed on 
cities, and would suffer similar financial instability as a 
result of this uncertainty. Even if the penalty is never 
imposed, the mere uncertainty would be enough to place a cloud 
over any jurisdiction's finances.

The prohibition if over broad and unreasonably vague

    At the heart of the legislation is section 8(1) which 
defines ``economic development.'' It is the inherent vagueness 
of this definition, most of which consists of exceptions to the 
general definition, that makes the bill truly unworkable.
    The prohibition applies only to non-consensual takings, and 
only to the actual conveying of that property from one private 
person to another private person ``for commercial enterprise 
carried on for profit, or to increase tax revenue, tax base, 
employment, or general economic health.'' \12\
---------------------------------------------------------------------------
    \12\ Sec. 8(1). By its own terms, the bill excludes any claims not 
involving a transfer of title. It would not include an assertion of a 
regulatory or other taking theory. While some have attempted to broaden 
the debate over Kelo to include so-called regulatory takings theories, 
neither the Court, nor the proponents of this legislation, has 
attempted to raise this far more dubious legal theory in this context.
---------------------------------------------------------------------------
    The definition contains a number of exceptions which create 
a number of ambiguities and would seem to leave open the 
possibility for perverse results.
    For example, eminent domain is permitted if it conveys the 
private property to a private entity ``such as a common 
carrier, that makes the property available for use by the 
general public as of right, such as a railroad, public utility, 
or public facility. * * *'' \13\ A public facility, which is 
privately owned, open to the public as of right would appear to 
include a sports stadium or a shopping center. They are at 
least as open to the public as a railroad, which provides a 
seat as of right for the price of a ticket. Indeed, unlike the 
railroad or the stadium, a shopping center is open to the 
public without the need to purchase a ticket.\14\
---------------------------------------------------------------------------
    \13\ Sec. 8(1)(A).
    \14\ Mr. Nadler offered an amendment to strike the phrase ``public 
facility,'' which was rejected by the Committee. There was some doubt 
whether a stadium would be a permitted use. Rep. Goodlatte argued that 
a stadium might be a permitted use if it were open to the public as a 
matter of right, but that a shopping center could never be a permitted 
use because they are not, in his view, open to the public as a matter 
of right. Markup of H.R. 4128, Unofficial Transcript 159-160 (Statement 
of Mr. Goodlatte). Ms. Waters took the position that a stadium that was 
privately owned could never be a permitted use. Id. at 165.
---------------------------------------------------------------------------
    There appears to have been a concern that private for-
profit uses might fall within the bill's prohibition because 
they are not necessarily a ``common carrier, that makes the 
property available for use by the general public as of right.'' 
Mr. Goodlatte offered an amendment, accepted by a voice vote, 
that moved ``public utility'' from the common carrier clause of 
paragraph (1)(A), and creating a new paragraph (1)(F) allowing 
the ``taking of private property for use by a public utility'' 
thus removing any requirement that a public utility behave in 
its traditional role as a common carrier in order to benefit 
from the extraordinary governmental power of eminent 
domain.\15\
---------------------------------------------------------------------------
    \15\ Congress has expanded the power of eminent domain for 
transmission lines in recent energy legislation. Energy Policy Act of 
2005, Pub. L. No. 109-58, Sec. 216(e) 119 Stat. 594, 948 (2005).
---------------------------------------------------------------------------
    The term ``blight'' is no longer used to describe a 
permitted use, but the bill does refer to ``removing harmful 
uses of land provided such uses constitute an immediate threat 
to public health and safety.'' \16\ It is our hope that this 
language will prove sufficiently narrow to eliminate the past 
abuses of eminent domain under the pretext of removing 
``blight.'' We remain concerned, however, that the new language 
could be abused in the same manner as the ``blight'' exception. 
We would hope that further clarification on this important 
point would be possible.
---------------------------------------------------------------------------
    \16\ Sec. 8(1)(B).
---------------------------------------------------------------------------
    Public developments are also precluded if they lease 
property to a private person ``that occupies an incidental part 
of public property or a public facility, such as a retail 
establishment on the ground floor of a public building.'' \17\ 
This would seem to prohibit the use of eminent domain to build 
such projects as New York's World Trade Center, which included 
public offices, transportation facilities, public open space, 
leased office space, and leased retail space. If a public 
project were later privatized, the former property owner would 
have a seven-year window to bring an action against the 
jurisdiction that would result in the loss of all economic 
development funds for two years.
---------------------------------------------------------------------------
    \17\ Sec. 8(1)(C).
---------------------------------------------------------------------------
    For these reasons, we believe that, however well 
intentioned, the proposed legislation would fail to protect 
vulnerable communities, allow projects of the type many 
proponents seek to prohibit, and hinder many projects normally 
considered to be in the public interest. Worse still, it would 
create financial chaos for cities, states, and the bond and 
insurance markets.
    This careless response to the Kelso decision is also 
unnecessary. States and localities are more than able to 
respond to this decision. To the extent that they fail to do 
so, the Congress would retain the ability and the authority to 
deal more narrowly with any problems that may arise. As the 
National League of Cities has reported,

    The Kelo Court, affirming federalism, did not preclude `any 
state from placing further restrictions on its exercise of the 
Takings power.' Approximately 30 states are already reviewing 
or planning to review their eminent domain laws during upcoming 
legislative sessions, with the majority focused on just 
compensation and comprehensive planning process modifications. 
Since June 2005, Alabama, Texas, and Delaware enacted laws that 
tighten the application of eminent domain power in each 
state.\18\
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    \18\ Letter to Hon. F. James Sensenbrenner & Hon. John Conyers, 
Jr., from Donald J. Borut, Executive Director, National League of 
Cities (Oct. 30, 2005).

    Land use planning is primarily a state and local function. 
For Congress to step in so precipitously, while states are 
still acting, violates fundamental principles of federalism. 
Were the states moving to take full advantage of the broadest 
possible reading of the Kelo decision, Congress might well have 
reason to move with equal dispatch. Just the opposite is true. 
States and localities are responding to the same concerns 
behind this legislation. They are, however, better able to 
respond to local needs and local realities. Congress is still 
free to respond to actual, rather than hypothetical, problems 
should the need arise.\19\
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    \19\ Representative Watt offered an amendment that would have left 
only the ``Sense of the Congress'' language of section 7, reflecting 
the view that Congress should state the principle that the power of 
eminent domain must be exercised properly and with restraint, but that 
congressional control over the minute details of these decisions goes 
too far.
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    We urge our colleagues to move with great care. The 
uncertainty with which the Judiciary Committee proceeded during 
its recent markup demonstrates just how chaotic a congressional 
effort to act as a national zoning board would likely be. At 
the very least, we would urge greater caution.
                                                    Jerrold Nadler.
                                                      Robert Scott.