[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
HEARING ON THE ``PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2013''
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
APRIL 18, 2013
Serial No. 113-17
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
80-460 WASHINGTON : 2013
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
KEITH ROTHFUS, Pennsylvania
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
Subcommittee on the Constitution and Civil Justice
TRENT FRANKS, Arizona, Chairman
JIM JORDAN, Ohio, Vice-Chairman
STEVE CHABOT, Ohio JERROLD NADLER, New York
J. RANDY FORBES, Virginia JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa ROBERT C. ``BOBBY'' SCOTT,
LOUIE GOHMERT, Texas Virginia
RON DeSANTIS, Florida STEVE COHEN, Tennessee
KEITH ROTHFUS, Pennsylvania TED DEUTCH, Florida
Paul B. Taylor, Chief Counsel
David Lachmann, Minority Staff Director
C O N T E N T S
APRIL 18, 2013
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution and Civil Justice................................. 20
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 22
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 23
Susette Kelo, New London, CT
Oral Testimony................................................. 26
Prepared Statement............................................. 29
David T. Beito, Professor, University of Alabama
Oral Testimony................................................. 31
Prepared Statement............................................. 34
Julia Trigg Crawford, Farm Manager, Sumner, TX
Oral Testimony................................................. 39
Prepared Statement............................................. 41
Scott Bullock, Senior Attorney, Institute for Justice
Oral Testimony................................................. 43
Prepared Statement............................................. 46
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Discussion Draft of H.R. ___, the ``Private Property Rights
Protection Act of 2013''....................................... 3
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 25
Material Submitted for the Hearing Record
Prepared Statement of Andrew W. Schwartz, submitted by the
Honorable Jerrold Nadler, a Representative in Congress from the
State of New York, and Ranking Member, Subcommittee on the
Constitution and Civil Justice................................. 64
H.R. 1944, the ``Private Property Rights Protection Act of 2013'' 78
HEARING ON THE ``PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2013''
THURSDAY, APRIL 18, 2013
House of Representatives
Subcommittee on the Constitution
and Civil Justice
Committee on the Judiciary
The Subcommittee met, pursuant to call, at 10:09 a.m., in
room 2141, Rayburn Office Building, the Honorable Trent Franks,
(Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Goodlatte, Chabot,
Gohmert, DeSantis, Nadler, Conyers, and Scott.
Staff present: (Majority) Zach Somers, Counsel; Sarah
Vance, Clerk; (Minority) David Lachmann, Subcommittee Staff
Director; Veronica Eligan, Professional Staff Member.
Mr. Franks. The Subcommittee on the Constitution and Civil
Justice will come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
We have called this hearing to examine the continuing need
for Congress to pass the Private Property Rights Protection
Act. This legislation is needed to blunt the negative impact of
the Supreme Court's decision in Kelo v. City of New London,
which permits the use of eminent domain to take property from
homeowners and small businesses and transfer it to others for
private economic development.
In Justice O'Connor's words, the Kelo decision pronounced
that, ``Under the banner of economic development, all private
property is now vulnerable to be taken and transferred to
another private owner so long as it might be upgraded. Nothing
is to prevent a state from replacing any Motel 6 with a Ritz
Carlton, any home with a shopping center, or any farm with a
The Kelo decision was resoundingly criticized from across
all quarters. In 2005, the House voted to express grave
disapproval of the decision and overwhelmingly passed the
Private Property Rights Protection Act, with 376 Members voting
in favor and only 38 Members voting against.
In the last Congress, the House once again passed this
legislation, this time by voice vote. Unfortunately, the bill
has not been taken up by the Senate.
The Private Property Rights Protection Act prohibits states
and localities that receive Federal economic development funds
from using eminent domain to take private property for economic
development purposes. States and localities that use eminent
domain for private economic development are ineligible to
receive Federal economic development funds for 2 fiscal years.
Every day, local governments in search of more lucrative
tax bases take property from homeowners, small businesses,
churches and farmers and give it to large corporations for
private redevelopment. Federal law currently allows Federal
funds to be used to support such condemnations, encouraging
this abuse nationwide. This bill will restore Americans' faith
in their ability to build, own, and keep their property without
fear that the government will take it and give it to someone
else. It will tell commercial developers that they should seek
to obtain property through private negotiation, not by
Too many Americans have lost homes and small businesses to
eminent domain abuse, forced to watch as private developers
replace them with luxury condominiums and other ``upscale''
uses. Family farms have been wiped out by eminent domain to
make way for shopping centers and big-box stores. Churches,
generally entitled to tax-exempt status, are often seized
through eminent domain to be replaced by more lucrative private
Unfortunately, it is usually the most vulnerable who suffer
from economic development takings. As Justice Thomas observed
in his dissenting opinion in Kelo, ``Extending the concept of
public purpose to encompass any economically beneficial goal
guarantees that these losses will fall disproportionately on
poor communities. Those communities are not only systematically
less likely to put their lands to the highest and best social
use but are also the least politically powerful. The
deferential standard this Court has adopted for the public use
clause encourages the citizens with disproportionate influence
and power in the political process, including large
corporations and development firms, to victimize the weak.''
I am pleased this week that Mr. Sensenbrenner and Ms.
Waters introduced again the Private Property Rights Protection
Act. We must restore the private property rights protections
that were erased from the Constitution by the Kelo decision.
John Adams wrote over 200 years ago that, ``property must be
secured or liberty cannot exist.'' As long as the specter of
condemnation hangs over all property, our liberty is
I look forward to the witnesses' testimony, and now I
recognize the Ranking Member, Mr. Nadler, for 5 minutes for his
[Discussion Draft of H.R. ___, the ``Private Property
Rights Protection Act of 2013'' follows.]
Mr. Nadler. Thank you, Mr. Chairman. Before we begin, I
want to thank you for moving this hearing back an hour to
accommodate a conflict the Democratic Members had due to our
regularly scheduled meeting.
Mr. Chairman, for once the Supreme Court defers to the
elected officials, and Congress cries foul. The power of
eminent domain is an extraordinary one and should be used
rarely and with great care. All too often, it has been abused
for private gain or to benefit one community at the expense of
another. It is, however, an important tool, making possible
transportation networks, irrigation projects, and other public
purposes. To some extent, all of these projects are ``economic
development projects.'' Members of Congress are always trying
to get these projects for our districts, and certainly the
economic benefits to our constituents is always a
Has this bill drawn the appropriate line between
permissible and impermissible uses of eminent domain? I think
this is one of the questions we will need to consider. We all
know the easy cases. As the majority in Kelo said, ``The city
would no doubt be forbidden from taking petitioner's land for
the purpose of conferring a private benefit on a particular
private party, nor would the city be allowed to take property
under the mere pretext of a public purpose when its actual
purpose was to bestow a private benefit.'' But which projects
are appropriate and which are not can sometimes be a difficult
Historically, eminent domain has been abused and has
destroyed communities for projects having nothing to do with
economic development, at least as defined in this bill. For
example, highways have cut through neighborhoods, destroying
them. Some of these communities are in my district that have
yet to recover from the wrecker's ball. Yet that would still be
permitted by this bill. Other projects might have a genuine
public purpose and yet would be prohibited. The rhyme or reason
of this bill is not clear.
One of our witnesses today will discuss the use of eminent
domain to facilitate a project that many of my Republican
colleagues want to see built and that this bill would permit. I
think we owe it to the many property owners who have been
subject to eminent domain by this foreign corporation to
consider whether that use of the takings power is appropriate
or whether, as many have argued, it is simply a case of the
rich and powerful using governmental power to dispossess those
I continue to believe that this bill is the wrong approach
to a very serious issue. The bill would permit many of the
abuses and injustices of the past to continue by excluding from
its coverage many of the projects that cause those abuses,
including pipelines, transmission lines and railroads. It would
allow the Keystone Pipeline to cut through the heartland of
America and condemn property all along its route. It would
allow highways to cut through communities. It would allow all
the other public projects that have historically fallen most
heavily on the poor and powerless. As Hillary Shelton at the
NAACP has previously testified, these projects can be just as
burdensome as projects that include private development.
This bill allows the use of eminent domain to give property
to a private party ``such as a common carrier that makes the
property available for use by the general public as of right.''
Does that mean, for example, a stadium? A stadium is privately
owned, available for use by the general public as of right, at
least as much as a railroad. You can buy a seat, but that would
apparently be permitted by this bill. Is it a shopping center?
You don't even need a ticket.
The World Trade Center could not have been built under this
law. It was publicly owned but was predominantly leased for
office space and retail use. Neither could Lincoln Center have
been built. Affordable housing like the Hope VI or the Nehemiah
program, a faith-based affordable housing program in Brooklyn,
could never have gone forward. So public housing, apparently,
completely constructed by the government, public housing
projects are okay, but public-private partnerships for
affordable housing are not okay.
Since the Kelo decision, there have been new developments
that call into question whether Congress should even act at
this point. In response to the Kelo decision, states have moved
aggressively to reconsider and amend their own eminent domain
laws. More than 40 states have acted to narrow their eminent
domain laws. States have carefully considered the implications
of this decision and the needs of their citizens. I question
whether Congress should now come charging in and presume to sit
as a national zoning board, aggregating to our national
government the right to decide which states have gotten the
right balance and deciding which projects are or are not
The lawsuits authorized by this bill and the vagueness of
the bill's definitions would cast a cloud over legitimate
projects. A property owner or a tenant would have 7 years after
the condemnation before the litigation and appeals need even
begin. Did the trial lawyers write this bill?
Most importantly, even if my colleagues believe that
Congress needs to act in response to Kelo, the penalties in
this bill are so draconian and misguided that even a government
that never took a prohibited action would be hobbled
financially by it. The local government would risk all of its
economic development funding for 2 years even for unrelated
projects and face bankruptcy if it guessed wrong about a given
project. Even if a jurisdiction did not use eminent domain at
all, the cloud this bill would cast over the possibility of
some future taking, or that property taking for a permitted
purpose could not be used because the funding dried up, would
be enough to destroy their ability to float bonds at any time.
And what does this bill give to an aggrieved tenant or
homeowner who was aggrieved by the misuse of eminent domain?
What does the bill give them? Nothing. They cannot sue to stop
the taking. They cannot get any damages other than the
compensation they got at the time of the taking. All they can
get is the psychic satisfaction that they get from bankrupting
Mr. Chairman, this legislation goes well beyond dealing
with a hypothetical taking of a Motel 6 to build a Ritz
Carlton, which despite dire warnings at the time of the Kelo
decision was simply not what the Court authorized. This bill
threatens communities with bankruptcy without necessarily
protecting the most vulnerable populations. It comes after
years of state action in which states have decided which
approach would satisfy their concerns and protect their
citizens the best.
I think this bill is unnecessary, and if it is to pass, it
should certainly be changed as to the remedy so that the remedy
deals with the problem and doesn't bankrupt communities that
never even availed themselves of eminent domain.
I want to join you in welcoming our witnesses, and I yield
back the balance of my time.
Mr. Franks. And I thank the gentleman, and I now yield to
the Chairman of the Committee, Mr. Goodlatte from Virginia.
Mr. Goodlatte. Well, thank you, Chairman Franks. I very
much appreciate your holding this hearing on a very important
Private ownership of property is vital to our freedom and
our prosperity and is one of the most fundamental principles
embedded in our Constitution. The founders realized the
importance of property rights by enshrining property rights
protections throughout the Constitution, including in the Fifth
Amendment, which provides that private property shall not be
taken for public use without just compensation.
This clause created two conditions to the government taking
private property: that the subsequent use of the property is
for the public, and that the government gives the property
owner just compensation. However, the Supreme Court's 5-4
decision in Kelo v. City of New London was a step in the
opposite direction. This controversial ruling expanded the
ability of state and local governments to exercise eminent
domain powers to seize property under the guise of economic
development when the public use is as incidental as generating
tax revenues or creating jobs.
The Kelo decision even permits the government to take
property from one private individual and give it to another
private entity. As the dissenting justices observed, by
defining public use so expansively, the result of the Kelo
decision is, ``effectively to delete the words `for public use'
from the takings clause of the Fifth Amendment. The specter of
condemnation hangs over property. The government now has
license to transfer property from those with few resources to
those with more. The founders cannot have intended this
In the wake of this decision, state and local governments
can use eminent domain powers to take the property of any
individual for nearly any reason. Cities may now bulldoze
private citizens' homes, farms and small businesses to make way
for shopping malls and other developments. For these reasons,
it is important that Congress finally pass the Private Property
Rights Protection Act.
I am pleased that this legislation incorporates many
provisions from legislation I helped introduce in the 109th
Congress, the STOPP act. Specifically, the Private Property
Rights Protection Act would prohibit all Federal economic
development funds for a period of 2 years for any state and
local government that uses economic development as a
justification for taking property from one person and giving to
another private entity.
In addition, this legislation would allow state and local
governments to cure violations by giving the property back to
the original owner.
Furthermore, this bill specifically grants adversely
affected landowners the right to use appropriate legal remedies
to enforce the provisions of the bill.
The bill also includes a carefully crafted definition of
economic development that protects traditional uses of eminent
domain such as taking land for public uses like roads, while
prohibiting abuses of eminent domain powers. No one should have
to live in fear of the government snatching up their home, farm
or business, and the Private Property Rights Protection Act
will help to create incentives to ensure that these abuses do
not occur in the future.
This bill is very bipartisan in nature, and the adage that
one's home is one's castle applies to people across the
I look forward to the witnesses' testimony, and I am
particularly looking forward to the testimony of Mrs. Kelo. I
thank you very much for coming to the Committee.
It is my understanding this is the first time that you have
testified before the Judiciary Committee, and I want to say to
you that as a woman who had the courage to take on the
bureaucracy and take a case all the way to the United States
Supreme Court, even though it resulted in an unfortunate
decision by the Court, has helped to highlight this plight that
many property owners face. The gentleman from New York is
correct, 40 states have changed their laws as a result of your
good work. So I thank you very much for that, and I will tell
you that the decision that came down that many of us have
protested was at the time the most unpopular Supreme Court
decision in the history of polling when people were surveyed
I agree very much with Congresswoman Maxine Waters, who
represents one of the poorest congressional districts in an
urban area in the entire country and who strongly supports this
measure because she knows two things: one, that a person's
property is their castle, no matter what their background is;
and she knows that so often it is people of lower incomes who
are the first targets of the government saying I am going to
take your property for economic development purposes because I
think we collectively as a government can do better with your
property than you can yourself. That is wrong. In my opinion,
it is a clear violation of the United States Constitution, and
anything this Congress can do to protect it will be wonderful.
But nothing we do will ever match what you have already
done. So thank you and God bless you.
Mr. Franks. And I thank the gentleman.
I would now yield to the Ranking Member of the Committee,
Mr. Conyers from Michigan.
Mr. Conyers. Thank you, Mr. Chairman. I rise as one who has
changed my opinion of this measure. I was going to put my
statement in the record, and my colleague from Virginia, Mr.
Scott, reminded me that I might better, more ably explain why I
have changed my position.
I don't like the Kelo decision of the Supreme Court, and
neither do I like the bill that was put in for this and that
will be coming in very shortly.
Mr. Scott also reminds me that downtown Detroit was built
off the whole idea that eminent domain could pose a problem. So
I am happy to make a few comments about the decision and the
Now, in the wake of the Kelo decision, the concern has
arisen that state and municipalities can use this decision to
expand their power of eminent domain, whether for the benefit
of private parties or public projects, to the detriment of
those who are the least powerful--the poor, the elderly, and
the communities of color. While I believe that eminent domain
can and has been abused, particularly with respect to those
lacking this economic and/or political power, I have come to
conclude that for the time being we should allow the states to
craft responses rather than impose an awkward one-size-fits-all
Federal legislative response.
It is important to note that in Kelo, the Court
acknowledged that the state courts may interpret their own
eminent domain powers in a manner that is more protective of
property rights. I am encouraged that no less than 43 states,
as has been mentioned, have followed that advice and taken
steps to restrict their own powers of eminent domain to guard
In my own State of Michigan, voters adopted an amendment to
amend the Michigan Constitution to preclude takings for
economic development or tax enhancement, among a number of
other protections for property owners and tenants.
Given the fact that our system of federalism appears to be
working and that the states are in consensus on the need to
prevent abuse, I don't think that we need Federal intervention
at this time.
The bill's enforcement provisions are very troubling. For
example, a jurisdiction found in violation of the measure would
be stripped of all Federal economic development funds for 2
years, which could possibly bankrupt that jurisdiction. Despite
that draconian penalty, the actual property owner would get
nothing. The bill does not even give the property owner the
right to sue to stop the taking in the first place. A suit can
only be brought after the property is taken.
The Supreme Court has long held that when Congress attaches
conditions to a state's acceptance of Federal funds, the
conditions must be set out unambiguously. The bill, however,
fails to satisfy this requirement with respect to its
definition of economic development funds, which therefore could
subject a jurisdiction to its punitive provisions.
For instance, the Government Accountability Office, GAO,
testified in the last Congress about the difficulty of
determining what qualifies as an ``economic development
program.'' GAO has also warned that the loss of Federal funding
to a state and local government could encompass highway trust
funds, community development block grants and other Department
of Housing and Urban Development programs intended to assist
vulnerable communities. Of course, the sequester doesn't help
Mr. Chairman, I will stop at this point, put the remainder
of my statement in the record, and thank the Chairman for the
additional time that he has given me.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
In the wake of the Supreme Court's decision in Kelo v. City of New
London, I have been concerned that states and municipalities could use
this decision to expand their power of eminent domain--whether for the
benefit of private parties or for public projects--to the detriment of
those who are the least powerful, namely, the poor, elderly, and
communities of color.
While I believe the power of eminent domain can and has been
abused--particularly with respect to those lacking economic or
political power--I have come to conclude that for the time being we
should allow the states to craft responses, rather than impose and
awkward and one size fits all federal legislative response. I have
reached this conclusion for several reasons.
First and foremost, it is important to note that in Kelo, the
Supreme Court acknowledged that state courts may interpret their own
eminent domain powers in a manner that is more protective of property
I am therefore encouraged that no less than 43 states have followed
that advice and taken steps to restrict their own powers of eminent
domain to guard against abuse.
For example, in 2006 Michigan voters adopted an amendment to
Michigan's Constitution to preclude takings for economic development or
tax enhancement, among a number of other protections for property
owners and tenants.
Given the fact that our system of federalism appears to be working
and that the states are in consensus on the need to prevent abuse, I do
not believe that federal intervention is necessary or appropriate at
Second, the bill's enforcement provisions are very troubling. For
example, a jurisdiction found in violation of the measure would be
stripped of all federal economic development funds for two years, which
could possibly bankrupt that jurisdiction.
Despite that draconian penalty, the actual property owner would get
nothing. The bill does not even give the property owner the right to
sue to stop the taking in the first place. A suit can only be brought
after the property is taken.
The Supreme Court has long held that ``when Congress attaches
conditions to a State's acceptance of Federal funds, the conditions
must be set out `unambiguously.' '' \1\
\1\ Arlington Cent. School Dist. Bd. Of educ. V. Murphy, 548 U.S.
291, 296 (2006) (quoting Pennhurst State School and Hospital v.
Halderman, 451 U.S. 1 (1981) (citations omitted).
The bill, however, fails to satisfy this requirement with respect
to its definition of ``economic development funds,'' which therefore
could subject a jurisdiction to its punitive provisions.
For instance, the Government Accountability Office testified in the
last Congress about the difficulty of determining what qualifies as an
``economic development program.''
GAO also warned that the loss of federal funding to a state and
local government could encompass Highway Trust Funds, Community
Development Block Grants, and other Department of Housing and Urban
Development programs intended to assist vulnerable communities.
The recent sequester has further diminished the already shrinking
federal funds that assist state and local governments.
Given all of the uncertainty that sequestration has cast over the
viability of states to stimulate job creation, provide health care, and
build infrastructure, the bill's punitive provisions could prove
Finally, against this backdrop, we need to remember that eminent
domain abuse has a long and shameful history of disproportionately
impacting minority communities.
Inner city neighborhoods that lacked institutional and political
power were often designated as blighted areas slated for redevelopment
through urban renewal programs. Properties were condemned and land was
turned over to private parties.
In Detroit Michigan, neighborhoods such as Poletown have
experienced firsthand how eminent domain can destroy neighborhoods,
presenting issues similar to those in the Kelo case.
This underscores why it is important that we continue to monitor
the facts on the ground and hold hearings like we are today. If the
states do not continue to act to protect our citizens, Congress should
remain ready, willing and able to do so.
Mr. Franks. I thank the gentleman, and without objection,
other Members' opening statements will be made part of the
Let me now introduce our witnesses. I welcome you all here
today, along with those welcomes you have already received.
Susette Kelo purchased and lovingly restored her dream home
in 1997, a little pink house with views of the water in New
London, Connecticut. Tragically, the City of New London turned
her dream home into a nightmare. Ms. Kelo was the lead
plaintiff in the landmark Supreme Court case Kelo v. City of
New London. In that case, the Court ruled that the city could
take her home and give it to a private developer for economic
development purposes. Sadly, Ms. Kelo's story is all too
familiar to many other Americans trying to save their private
property from governmental seizure.
David--is it Beito, sir? David Beito is an historian and
professor of history at the University of Alabama. His research
focuses on civil rights history. Dr. Beito is the author of
three books and has also written numerous scholarly articles.
In 2007, Dr. Beito was appointed to the Chair of the Alabama
State Advisory Committee of the U.S. Commission on Civil
Rights. As chair, he has addressed eminent domain abuse as a
civil rights issue.
Julia Trigg Crawford manages a 600-acre farm in Northeast
Texas that has been in her family since 1948. Ms. Crawford is
fighting the use of eminent domain to take a portion of her
family's farm as part of the Keystone Pipeline project. Her
case is currently before the Texas 6th Circuit Court of
Appeals. Ms. Crawford is challenging TransCanada's authority
under Texas law to exercise the power of eminent domain.
Scott Bullock is a senior attorney at the Institute for
Justice, a non-profit public-interest firm that represents
people whose rights are being violated by the government. Since
his time with the Institute for Justice, Mr. Bullock has
brought numerous cases in which homes or small businesses have
been seized by the government through the power of eminent
domain and transferred to another private party. In 2005, he
argued Kelo v. City of New London before the United States
Each of the witness' written statements will be entered
into the record in its entirety, so I would ask that each
witness summarize his or her testimony in 5 minutes or less. To
help you stay within that time, there is a timing light in
front of you. The light will switch from green to yellow,
indicating that you have 1 minute to conclude your testimony.
When the light turns red, it indicates that the witness' 5
minutes have expired.
Before I recognize the witnesses, it is the tradition of
the Subcommittee that they be sworn. So if you would please
stand to be sworn.
Mr. Franks. You may be seated.
Let the record reflect that the witnesses answered in the
I now recognize our first witness. Please turn on your
microphone, Ms. Kelo, before you speak. Thank you.
TESTIMONY OF SUSETTE KELO, NEW LONDON, CT
Ms. Kelo. I want to thank Representative Waters----
Mr. Franks. Ms. Kelo, I am not sure that went on. Did the
light turn on? Maybe pull it a little bit closer to you.
Ms. Kelo. I want to thank Representative Waters and
Sensenbrenner for their sponsorship of the Private Property
Rights Protection Act and for their support of property owners
and tenants nationwide. My name is Susette Kelo, and I am the
Kelo in Kelo v. the City of New London, the case in which the
United States Supreme Court ruled that private property,
including my home, could be taken by another private party who
promises to create more jobs and taxes with the land.
While we homeowners of New London may have lost that
battle, we are winning the war. The decision sparked a
nationwide revolt against eminent domain abuse and demonstrated
that virtually the entire country, regardless of background or
political party, is against this practice.
But Congress has so far refused to join the rest of the
Nation in Kelo backlash and continues to fund eminent domain
My 9-year battle began in 1997 when I searched all over New
London for a house and finally found the perfect Victorian
cottage with beautiful views of the water. I knew when I first
entered it that I was meant to be there. My husband and I spent
every spare moment fixing it up and creating the kind of home
we had always dreamed of, and I painted it salmon pink, my
When I first bought the house, it had been run down. When
finished, we made it beautiful. But the New London Development
Corporation decided it wanted to give my property to a private
developer, so it told my neighbors and me we had to sell or be
condemned. But we all loved our homes and neighborhood and we
were not prepared to give in. Nine years later, the United
States Supreme Court ruled against us.
My story is not unique. In just the year after the
decision, almost 6,000 homes and businesses were threatened or
condemned for private development. Just as my neighbors and I
didn't want to sell and didn't ask to be condemned, neither did
the hard-working, tax-paying Americans fighting to keep their
homes and businesses.
Congress must stop funding this abuse of power. Our Federal
tax dollars shouldn't be used to take away our homes and
businesses so that developers can build shopping malls and
high-priced condominiums. For the project that was supposed to
replace my New London home, New London received $2 million in
funds from the Federal Economic Development Administration. If
this bill had been in place, it could have helped prevent New
London from seizing my little pink cottage, which my husband
and I spent years making into the kind of home we could be
And all of this was for nothing. After spending close to
$80 million in taxpayer money, there has been no construction
whatsoever in the neighborhood. To this day, it remains a
barren field, home to weeds and feral cats. In 2009, Pfizer,
the linchpin of the plan, announced that it was closing its
research and development headquarters and leaving New London
My battle started as a way for me to save my home, but it
has rightfully grown into something much larger, the fight to
restore the American Dream and sacredness and security of each
one of our homes.
Property owners across the Nation are now up in arms and
united in the fight to end eminent domain abuse. I thank
Representative Waters and Sensenbrenner for being on the front
lines, and I ask Congress to join them by passing the Private
Property Rights Protection Act. Thank you.
[The prepared statement of Ms. Kelo follows:]
Mr. Franks. Mrs. Kelo, thank you very much.
TESTIMONY OF DAVID T. BEITO, PROFESSOR,
UNIVERSITY OF ALABAMA
Mr. Beito. Thank you, sir, for this opportunity to come
here today and speak on this issue. My focus is going to be on
how expansive eminent domain to benefit private interests as a
consequence of subsidizing private development has posed and
continues to pose a threat to the civil rights of minorities
and the poor. In my view, the Private Property Rights
Protection Act of 2013 provides the best available means to
provide some measure of corrective relief.
In the history of the United States during the last 100
years, no group has suffered more from eminent domain abuse
than African-Americans. According to one typical study, two-
thirds of those displaced by urban renewal, often via eminent
domain, were non-White. Another study found that four-fifths of
these paid substantially higher rents than they had before.
Commenting on the fact that government-sponsored urban renewal
destroyed far more housing units than it ever replaced, author
James Baldwin charged that ``urban renewal means moving the
Negroes out. It means Negro removal. The Federal Government is
The pattern of abuse did not end in the 1960's and 1970's.
It has often continued to the present. In San Jose, California,
for example, 95 percent of the businesses in recent years,
destroyed by eminent domain, were minority owned, even though
they constituted only 30 percent of the businesses in the city.
In 2005, this long record of eminent domain overreach
prompted several important minority organizations, including
the NAACP and the Southern Christian Leadership Conference, to
jointly file an amicus brief for the plaintiffs in the Kelo
case. After reviewing the historical background, this brief
warned that enabling local governments to take ``property
simply by asserting that they can put the property to a higher
use will systematically sanction transfers from those with less
resources to those with more. . . . Even absent illicit
motives, eminent domain power has affected and will
disproportionately affect racial and ethnic minorities, the
elderly and the economically disadvantaged. Well-cared-for
properties owned by minority and elderly residents have
repeatedly been taken so that private enterprise could
construct superstores, casinos, hotels, and office parks.''
It might be asked why Congress needs to step in now. Can't
the states be trusted to prevent the abuse of eminent domain?
Unfortunately, the 8-year aftermath of Kelo shows that they all
too often will not, especially when Federal money is
potentially at stake. My own state of Alabama is a case in
point. In the wake of national outrage over Kelo, it was one of
the first to enact corrective reform which greatly limited
eminent domain for private purposes. Only last month, however,
Alabama reversed course and gutted a key element of this
Now, while some who have voted for it have since stated
that they did not intend to undermine the earlier reform, and
even acknowledged the need to close inadvertent loopholes in
the new law's wording, they have made no apparent effort to do
If the states will not act to defend the property rights of
the poor and vulnerable, Congress must. As generations of civil
rights champions have stressed, the protection of the right to
acquire and hold property is critical to the economic progress
of the poor and oppressed. In 1849, for example, Frederick
Douglass declared that the chief end of civil government is
``to protect the weak against the strong, the oppressed against
the oppressor, the few against the many, and to secure the
humblest subject in the full possession of his rights of person
and of property.''
During a time of recession, it is all the more important to
heed Douglass' timeless words. In this same spirit, it is also
past due to start viewing the existing property owners in
lower-income neighborhoods as assets to the community. The
passage of the Private Property Rights Protection Act of 2013
will greatly contribute to this goal by fostering an
environment which will treat low-income property owners and
entrepreneurs as valuable urban pioneers rather than as
obstacles to be pushed out of the way if their rights conflict
with some broader governmental or private agenda.
[The prepared statement of Mr. Beito follows:]
Mr. Franks. Thank you, sir.
Ms. Crawford, you are recognized now for 5 minutes.
TESTIMONY OF JULIA TRIGG CRAWFORD,
FARM MANAGER, SUMNER, TX
Ms. Crawford. Good morning. My name is Julia Trigg
Crawford, and I manage the Texas farm my grandfather bought in
1948. Our land was taken by TransCanada for the Keystone
project, so I absolutely support measures to limit eminent
domain. But I strongly oppose an exemption for TransCanada,
Keystone XL, and any other entity that cannot provide proof
their projects are for the public benefit.
TransCanada abused the right of eminent domain in taking
our land as it was the elbow they so desperately needed to
avoid nearby wetlands, waterways and pipelines. We never wanted
them on our place to start with, and told them so in 2008. We
asked them to find another route through a willing neighbor,
just a little further west. They refused.
We told them we wanted to protect the 1,000-year-old Caddo
Indian relics on our farm. TransCanada's archaeologists
recently found 145 artifacts within the proposed easement, some
as large as silver dollars, yet their report discounts their
merit. How curious that TransCanada and the Texas Historical
Commission concur that my entire 30-acre pasture qualifies for
National Registry of Historic Places except for the one sliver
of land that TransCanada must have to connect the two sections
of pipe already built.
We told them we feared for Bois d'Arc Creek. Water is a
farmer's lifeblood, and pipelines leak, and we didn't want to
be a guinea pig for how to clean up tar sands spills in Texas
waters. TransCanada said they are coming anyway.
But more than anything else, we do not believe a foreign
corporation transporting a product produced outside of Texas
meets our state's qualifications of common carrier. No common
carrier, no eminent domain. But TransCanada moved ahead anyway,
exploiting Texas' flawed permitting process, and starts
construction on my land tomorrow.
But we are pushing back. The 2011 Texas Supreme Court
ruling in Denbury Green said that private property rights are
too precious to be taken by simply checking a box on a form.
They also said, when challenged by a landowner, the pipeline
has the burden to present reasonable proof it meets the
requirements of a common carrier. So we asked for the proof.
TransCanada hid behind the skirts of the Texas Railroad
Commission, an entity that fully admits they rubberstamp every
application they receive.
So we asked again for their tariff schedule. TransCanada
said they could not have that tariff schedule until about the
time product started flowing, meaning they could not produce
the proof, they could take my land, until after they took my
land, construction of the pipeline and tar sands were about to
These examples of abuse are why TransCanada and the
Keystone XL must not be granted an extension, and it is why I
cannot support this bill in its entirety. If we allow these
exemptions, we will be setting a dangerous precedent, leaving
the door open for further misuse of our legal system and abuse
of landowners. The same system that enabled a judge to rule
against us with a 15-word ruling sent from his iPhone would
enable TransCanada and other pipeline companies to use this
incredible legal and psychological leverage of eminent domain
to continue stealing property from American citizens.
We have appealed to the Sixth Circuit, and if our funds
hold out we will take it to the Texas Supreme Court. My family
and I are standing tall for what we believe.
I have not seen one shred of documentation that proves that
one single drop of the products in Keystone's pipeline will
wind up in my gas tank or yours, for that matter, yet we are
supposed to relinquish our family's tradition and the cultural
heritage of the Caddo and endanger my land and water just
because TransCanada says, without proof, that their pipeline is
for the public good. How can this pipeline be for the public
good when so much information about it is not even in the
public record? Diluted bitumen, tar sands, whatever you want to
call it, is a product we should fully understand before we
start pumping it through waterways. TransCanada has called this
product proprietary, refusing to provide specifics. How can we
ensure the safety of a substance when we don't even know its
Pipeline companies do not deserve a free ride, especially
when they can't clean up their own messes. Look at Enbridge in
Michigan or Exxon in Arkansas, a spill I went to see for
myself. The thought of that kind of destruction on my farm in
my creek is frightening. America already subsidizes the oil
industry at a monumental disproportion to other industries. Why
should we further underwrite pipelines with our safety, our
security, and our dignity?
This bill, with its exemption of TransCanada and the
Keystone XL, turns a blind eye to the most flagrant abuser of
eminent domain today. Hold everyone to the same standards and
let those who manipulate the system for their own good suffer
the consequences. TransCanada stole land that has been in my
family for six decades for a project that will line their
pockets. To allow them to walk away from past abuses without
penalty is unforgivable.
I will continue to fight these injustices because life as
we know it depends on it, and I am not alone. Thank you.
[The prepared statement of Ms. Crawford follows:]
Prepared Statement of Julia Trigg Crawford,
Farm Manager, Summer Texas
Mr. Franks. Thank you, Ms. Crawford.
Now, Mr. Bullock, I recognize you, sir.
TESTIMONY OF SCOTT BULLOCK, SENIOR ATTORNEY, INSTITUTE FOR
Mr. Bullock. Thank you, Mr. Chairman. Thank you for the
opportunity to testify regarding eminent domain abuse, an
important issue that has received significant national
attention as the result of, as one of the Members just recently
pointed out, one of the nearly universally despised Supreme
Court decisions, certainly in recent memory.
This Committee is to be commended for responding to the
American people by continuing to examine this misuse of
government power, and it is our hope that the Congress passes
the Private Property Rights Protection Act.
I did have the great honor of representing Susette Kelo and
the other homeowners in New London and many other home and
small business owners throughout the country that have been
fighting this combination of public power and private gain.
The Kelo case signaled that the U.S. Constitution provides
very little protection for private property rights of Americans
faced with eminent domain abuse. Indeed, the Court ruled that
is it is acceptable to use the power of eminent domain where
there is a mere possibility that something could make more
money than the homes or small businesses that currently occupy
the land. The Supreme Court has so far refused to reconsider
the Kelo decision, just this week turning down another case
that would have permitted the Court to reconsider its misguided
ruling in Kelo.
Because this threat has been noted by several people who
have testified and by Members of this Subcommittee, there has
been considerable public outcry against the closely divided
Supreme Court decision. Organizations spanning the political
spectrum have united in opposition to eminent domain abuse.
Unfortunately, while several bills have been introduced in
Congress, including one in the 109th Congress that passed the
House by a vote of 376 to 38, Congress has yet to pass this
The Private Property Rights Protection Act introduced in
this Congress is commonsense legislation that will stop the
Federal Government from being complicit in an abuse of power
already deemed intolerable by most individuals.
It should be noted that eminent domain abuse was a problem
before the Kelo decision, and it remains a problem today. We
noted in the study that we released in 2003 that there were
over 10,000 instances of private-to-private transfers of
property in a mere 5-year period. That is certainly an
undercount of the number of times that eminent domain abuse
occurs. In my written testimony we have documented several
instances of eminent domain abuse that occurred, including
several instances both before the Kelo decision and after the
Kelo decision where these projects received Federal funds for
As mentioned above, heeding a deafening public outcry
against eminent domain abuse, 44 states have reformed their
eminent domain laws in the wake of Kelo. These reforms vary
greatly, and indeed no two states enacted the same legislative
reforms, but eminent domain abuse has become virtually
nonexistent in some states, while in others there remains
serious abuse and much need for improvement.
As Professor Beito just recently noted, Alabama passed
legislation to roll back its eminent domain reform after being
the first state to react legislatively to give its citizens
stronger protection against this abuse of power. This
demonstrates an ongoing need to remain vigilant against eminent
domain abuse and for this Congress to act in order to not give
Federal sanction to these abuses of private property rights.
The legislation also contains important protections in
order to preserve communities' ability, for instance, to deal
with truly blighted properties, properties that are abandoned,
properties that pose direct threats to public health and
safety. It should also be noted that this bill will not
interfere with communities' abilities to engage in economic
development. Thankfully, most development occurs in this
country without the use of eminent domain. These reforms and
the reforms that have been passed by the states do not
interfere with the ability of private property owners to sit
down, negotiate, and engage in economic development projects.
In this economy especially, Congress does not need to be
spending scarce economic development funds for projects that
not only abuse eminent domain and strip hard-working, tax-
paying home and small business owners of their constitutional
rights, but in many instances these projects fail. The project
in New London, as Ms. Kelo mentioned, is Exhibit A for what
happens when governments abuse eminent domain and engage in
massive corporate welfare. After $80 million being spent over
12 years since the redevelopment plan has passed, over six or 7
years since Mrs. Kelo and her neighbors were forced out of
their homes, there remains no economic development in this
peninsula whatsoever, and it is a barren field. That is too
often the legacy left behind this abuse of eminent domain.
So we ask the Congress to pass the Private Property Rights
Protection Act to protect homeowners like Ms. Kelo and small
business owners throughout the country. Thank you very much.
[The prepared statement of Mr. Bullock follows:]
Mr. Franks. Thank you, Mr. Bullock.
Thank you all for your testimony, and we will now proceed
under the 5-minute rule with questions, and I will begin by
recognizing myself for 5 minutes. Ms. Kelo, I will begin with
Let me add my own special expression of gratitude to you
for being here and for all the things that you did to get here.
Mrs. Kelo, you were provided monetary compensation for the
property that the City of New London took from you, but could
you explain the emotional and sentimental costs that losing
your home inflicted, a cost that money simply doesn't
Ms. Kelo. Correctly said. It really didn't matter what they
gave us. We did not want to leave our homes, all of us. It was
never about the money, and we never talked about money. We
never engaged in money conversations until the end, when we
were forced to do so, after we had no choice and knew that we
had to go.
We had one family that was there since the 1890's, and what
they did to us was absolutely horrible. Nobody in this country
should have to live the way we lived. Nobody in this country
should have to live the way we lived and lose what we lost.
Mr. Franks. Yes. Well, thank you.
Mr. Bullock, let me ask you, this legislation takes Federal
economic development funds away from local governments that
violate private property rights for a period of 2 years. Some
have argued that the removal of these funds is unnecessary and
that the right of private action would be sufficient. Could you
explain why, from an enforcement perspective, that taking away
Federal economic development funds is an important component of
Mr. Bullock. Well, it would provide a very strong incentive
for local communities to not engage in these types of abuses.
It should be noted that this bill would not override the
substantive rights that would still be given to private
property owners to fight against takings of property. So this
is not a bill that tries to impose some type of Federal
standard of substantive rights into the court procedures that
occur. So property owners would still, hopefully, if their
state has passed good eminent domain legislation, would have
the ability to fight the taking itself. What this bill I think
really aims at is to try to persuade communities that engage in
economic development to not abuse eminent domain in the first
instance. If they don't abuse eminent domain and if they are
not taking people's property against their will for private
development projects, then there would be no effect upon those
Federal economic development funds.
Mr. Franks. Let me continue with you. It is very
unfortunate that some of Ms. Crawford's land is being taken to
build the Keystone Pipeline. However, it is my understanding
that, unlike the economic development taking in Kelo, that
using eminent domain to take land to build a pipeline has
traditionally been accepted to be a public use. Is using
eminent domain for building a pipeline or any other public
utility project a traditional, pre-Kelo use of the eminent
domain power. Can you give us some contrasts?
Mr. Bullock. Sure. That is something that Justice Thomas in
his dissent in Kelo went through very carefully in looking at
the history of eminent domain and in giving examples of how
eminent domain is being used. Of course, he took the most
restrictive definition of eminent domain possible. He really
dissented alone, and he noted that common carriers and
utilities have typically been granted eminent domain power to
carry out those public uses.
So that is quite different from the government taking land
directly from one private property owner and handing it over to
another private property owner that is not in any way a common
carrier, has a special status under the law, but is just a
garden-variety developer, whether it is a condominium developer
or a big-box retail developer, the creator of a lifestyle
center, which if you look through my written testimony and most
of the examples of eminent domain abuse, that is what these
cases involve, is just pure private development takings.
Mr. Franks. Thank you, sir.
Dr. Beito, some of the opponents of this legislation have
argued that there is no reason for Congress to step in and try
to limit economic development takings, that states have already
done enough. How would you respond to such an argument?
Mr. Beito. Well, again, the example of Alabama, this bill
just last month was passed almost unanimously, and it
specifically uses the term ``eminent domain.'' It gives an
eminent domain protection for the automotive industry, I think
biotech, several other industries. Now, what is interesting
about this is that just after it passed, people were challenged
on it, and some people who voted for it said, well, oh, we
didn't mean to undermine eminent domain, but maybe our wording
was sloppy and maybe we need to do something about it. So this
kind of thing I think happens a lot in legislative bodies.
Bills sort of are pushed through, nobody is really paying
attention, and before you know it, it is there, and it stays
there usually, even though we have some regret being expressed,
and I suspect this kind of thing happens a lot.
This doesn't limit the freedom of states, the ability of
states to use eminent domain, even for private development. All
it is saying is that we don't want our Federal subsidies to go
for this, which I think is an important distinction to make.
Mr. Franks. Well, I thank you all. I will now recognize the
Ranking Member for 5 minutes for his questions.
Mr. Nadler. Thank you, Mr. Chairman.
We all have considerable unease about eminent domain. I
certainly do, too, and it certainly has been abused in the
past. I prefer to let the states deal with it to a large
extent, but my real concern with this bill goes beyond
generalities. I want to ask Mr. Bullock a few questions about
The bill says that a state, a political subdivision, cannot
condemn by eminent domain a property for purposes of economic
development, and if it does, for a period of 7 years
thereafter, for a period of 7 years from when such a use is
consummated, the former property owner may sue. And if he sues,
the remedy is cessation of economic aid from the Federal
Government. That is the remedy scheme.
Now, what bothers me about this is, aside from the fact
that it doesn't help the property owner, all it does is perhaps
bankrupt the municipality.
Let's assume that a municipality condemns a property for a
use which it thinks proper, let's say for a school, a public
use. Let's assume that the funding for the school dries up
because Congress enacts a sequestration and there is no more
money for schools. That has been known to happen. Let's assume
that a few years later, after five or 6 years, the municipality
realizes it has no money for a school, and anyway there aren't
that many school kids anymore because everybody has moved away
because they closed the defense plant, so now it sells the
The original purpose was a legitimate use, for a school.
Now it sells the property to a private developer as surplus
property. Now someone can come in and sue the government and
sue the municipality to eliminate Federal aid for a few years.
That is the way this bill works. Am I correct in saying that?
Mr. Bullock. Well, that is not my understanding of how the
bill would work.
Mr. Nadler. Well, that is exactly what the bill says.
Mr. Bullock. And I think if it goes to the private
enforcement mechanism for it, I think it is important to have
Mr. Nadler. Never mind if it is important to have it. Why
wouldn't it operate as I just said?
Mr. Bullock. I am sorry?
Mr. Nadler. Why wouldn't it operate as I just said? I don't
doubt that the authors of the bill thought it important to have
that clause in it for various reasons. I think it is a very
misguided clause. I think all it will do is enable states to be
sued, to lose their economic aid even if they proceed in
perfectly good faith and for some reason the public purpose
fell through and now they sell it as surplus property.
Mr. Bullock. The reason why you have the 7-year limit in
there and why I think it is a central part of the bill is so
you do not get into a situation----
Mr. Nadler. I understand that, but why wouldn't it operate
the way I just said? And if it does operate the way I just
said, wouldn't that be a pretty perverse result?
Mr. Bullock. A pretty perverse result?
Mr. Nadler. Yes. In other words, a state decides they are
going to build a school. It condemns the property for the
school. For some reason, the school doesn't get built, and then
five or 6 years later it sells the property as surplus property
to some private owner, at which point it is subject to lawsuits
to stop economic aid.
Mr. Bullock. Right. I don't know in those circumstances who
would actually sue, because----
Mr. Nadler. The former property owner would sue.
Mr. Bullock. Right, but there could be a solution to this.
Mr. Nadler. Well, I would like to see it. I have been
asking this question for 4 years now.
Mr. Bullock. Sure. But, I mean, you can always come up with
certain types of hypotheticals that might----
Mr. Nadler. But this is very important. This is how it
would normally operate.
Mr. Bullock. I have never heard of this situation.
Mr. Nadler. You haven't gone to the--well, here is the
bill, page 2. The bill is very clear in what it says, and it
would operate the way I just said, unless you can tell me why
Mr. Bullock. You are asking the question as a hypothetical,
and I am saying could this possibly happen? Maybe. I don't know
of any other instances where it has happened.
Mr. Nadler. Well, we haven't had this bill.
Mr. Bullock. Right, but I am talking about----
Mr. Nadler. But that scenario happens all the time.
Mr. Bullock. No, it does not happen all the time.
Mr. Nadler. It does not happen all the time that a
government entity condemns the property from eminent domain for
a project that ultimately falls through and then sells the
Mr. Bullock. The key to this and why this provision is in
there and why it is important to have it in there, leaving
aside whatever hypothetical that might come up, that you might
come up with, is to prevent a situation, the government from
Mr. Nadler. I understand that. That is the purpose. The
effect is quite different. The purpose may be laudable. The
effect is what I just said, and you haven't told me why the
effect isn't as I just said.
Mr. Bullock. Well, I don't know how you remedy a situation
that is both hypothetical----
Mr. Nadler. Well, let me ask you a different question,
then. Let's assume that the government does nothing wrong. It
doesn't even, in fact, condemn anything by eminent domain, but
it wants to float a bond for economic development, and part of
the revenue stream against which it is going to float the bond
is anticipated Federal aid, which is what governments do. We
are anticipating X dollars in Federal aid per year. We are
going to float a bond for economic development, and this is
part of our backing for the bond.
Along comes bond counsel and says you can't do that because
maybe the mayor who hasn't been elected yet--the mayor is going
to be elected 4 years from now--maybe he will misuse the power
of eminent domain and subject the county to this penalty, in
which case there will be no Federal economic aid, and therefore
we can't okay this bond. So you are destroying the bonding
capacity of local governments without the government ever even
Mr. Franks. The gentleman's time has expired, but the
witness may answer the question.
Mr. Bullock. If I could just respond directly. There is one
simple solution to this, and it is a solution to even your
original hypothetical. Don't use eminent domain, don't use the
Mr. Nadler. What I just said would happen if they didn't
use eminent domain. Just the existence of the statute would
present that possibility.
Mr. Bullock. If a future mayor did not use eminent domain
for private development, there would not be an issue with it.
That is what this does.
Mr. Nadler. No, no. You are missing the point.
Mr. Franks. The gentleman's time has expired.
Mr. Nadler. Can I ask for one additional minute?
Mr. Franks. Without objection.
Mr. Nadler. Thank you.
The point is, the existence of this statute on the books
would put a cloud, like a cloud of title, like a cloud on
title, here being a cloud on future revenue. In case the city
in the future screwed up and improperly used eminent domain,
that would eliminate Federal aid in the future. Therefore, you
cannot depend on the Federal aid now. Therefore, you can't
float the bond. Any bond counsel would rule that way.
Mr. Bullock. Right. And if a future counsel or a future
mayor does not abuse eminent domain, which is the whole point
of this, is to provide a strong disincentive----
Mr. Nadler. Underwriting the bond, you have to assume that
that might happen. The point is that now, that bonds could not
be underwritten now because maybe that improper use would
happen in the future, and the bill would then eliminate the
ability to pay back the bond. So you couldn't underwrite the
bond now even if no one ever misbehaves in any way.
It puts a cloud on--not a cloud on title but a cloud on
revenue, even if nobody ever does anything, and that is the
basic flaw in this bill. It would eliminate the possibility, to
a very large extent, of use of Federal financing as a basis for
bonding for future economic development in states.
I thank the Chairman for yielding me the extra time.
Mr. Franks. The Chairman now recognizes Mr. DeSantis, the
gentleman from Florida, for 5 minutes.
Mr. DeSantis. Thank you, Mr. Chairman, and thank you for
holding this very important hearing.
Kelo v. City of New London to me was wrongly decided. I
think it is actually an example of judicial activism. Now, the
Court didn't actually strike anything down. It allowed this to
go, but I think when courts twist texts to fit their desired
outcome, when they manipulate or abuse precedent, that is a
form of judicial activism in that you are abandoning, I think,
the traditional judicial role, and that is really the key
takeaway from Kelo, is that you had five justices empower the
government at all levels at the expense of private property
I thought Sandra Day O'Connor hit it on the head in her
dissent when she said, ``Under the banner of economic
development, all private property is now vulnerable to be taken
and transferred to another private owner so long as it might be
upgraded--i.e., given to an owner who will use it in a way that
the legislature deems more beneficial to the public--in the
process.'' And so under Kelo, private property is essentially
at the mercy of central planners who may very well deem an
individual's property too blighted and not optimal for
commandeering the amount of tax revenues required to fund the
ambitions of the central planners. So I just think it was a
Mrs. Kelo, I want to thank you for what you did to fight
this and for coming and appearing today. In terms of fighting
this, I mean, how many different cases--because it went all the
way up to the Supreme Court. Can you just briefly explain the
process that you had to go through to try to vindicate your
Ms. Kelo. Well, Scott took the case. We started really just
as grassroots and trying to fight it just with the
neighborhood, and then the Institute for Justice got involved,
and then we had to go to the Connecticut court, the New London
Superior Court, and then to the state Supreme Court, and then
to the United States Supreme Court.
Mr. DeSantis. And you had mentioned that the Institute for
Justice took your case. Had they not been willing to do that,
would you have had the resources or the time----
Ms. Kelo. Oh, absolutely not.
Mr. DeSantis [continuing]. To take it all the way up there?
Ms. Kelo. Absolutely not. Absolutely not. Absolutely not.
Mr. DeSantis. Now, I guess you mentioned it in your opening
statement, but you had your house taken. It was taken not for a
traditional public use, like a road or a bridge, but to
transfer to a private company who they thought would generate
more tax revenue, essentially, and you mentioned that it has
all kind of gone kaput. Can you just elaborate on that a little
bit? Because I just find that amazing that you had gone through
all of this, and now what they were promising didn't even
Ms. Kelo. That is correct. Nothing has been built or even
developed there. As a matter of fact, as they took the
properties by eminent domain, or as people, the elderly gave in
and moved, they destroyed the houses one by one. So there was
actually nothing even left in the neighborhood to save because
they had tore down the houses.
They tore down the house right next to me, and the houses
were very close to each other, maybe only 15 or 20 feet apart,
and with the threat of the neighbor's house being collapsed on
my house that I was living in. So they systematically destroyed
the neighborhood to make it so we were fighting for--there was
nothing left to fight for.
Mr. DeSantis. And you support this particular piece of
legislation, and have you been involved in some of the efforts
in some of the states to curb eminent domain abuse that has
occurred since your case was decided at the Supreme Court?
Ms. Kelo. Yes, I have. Yes.
Mr. DeSantis. Okay. And I would just say, again, thank you
for what you have done. I think that your case has brought this
issue to the forefront, and a lot of folks, their rights are at
stake too. So you have done a great bit of good.
And I would also say, even though I disagreed with the
decision, at least if a court fails to enforce a limitation on
government, or fails to enforce a right, at least it allows
states and Members of Congress to legislate protections for
people. When the Court strikes down things and they are
activists in that direction, that kind of freezes that and you
need a constitutional amendment. So even though I thought it
was a bad decision, I am happy that states have taken the lead
in reforming this, and I think that I am certainly very
favorably disposed to this piece of legislation, and I think it
is common sense. I think it is consistent with the freedoms
that the Founding Fathers intended, and I yield back, Mr.
Ms. Kelo. Thank you.
Mr. Franks. And I thank the gentleman.
Now I recognize the gentleman from Michigan, Mr. Conyers,
for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman.
Dr. Beito, isn't it correct that there was objection to the
Supreme Court decision in this matter because they added this
new concept of economic development to expand the tax base was
now a new reason to use eminent domain?
Mr. Beito. Yes. I am not an expert in the legal history,
but that was certainly one of the justifications. You could say
that the door had really been opened in 1954 by Berman v.
Parker, which used this doctrine of public purpose to say,
well, you can--loosely interpreted the doctrine of public use.
But I think that Kelo was sort of more notorious for focusing
on that aspect of it.
Mr. Conyers. And coming to you, Attorney Bullock, do you
think that they also expanded the public purpose concept as an
additional reason for eminent domain, which hadn't existed as
Mr. Bullock. That is correct, Representative Conyers. For
the past 50 years, as Professor Beito pointed out, the Supreme
Court had given a broad interpretation to the public use
clause. I think wrongly, they have really turned it into a
public purpose clause or a public benefit clause.
But despite this broad language in previous decisions, the
Supreme Court had never signed off on saying that merely using
eminent domain simply to raise more tax revenue or to create
more jobs to further economic development was a public use.
That is what the majority opinion did in Kelo, and that is one
of the real dangers of it, is because it is really a vision of
eminent domain without any sort of limitation. Every home would
produce more tax revenues and jobs if it were a business. Every
small business, at least theoretically, would produce more jobs
and tax revenue if it were a larger business. So that is the
real danger of the Kelo decision. That is why there is the need
for the reform at both the state level and then hopefully at
the Federal level as well.
Mr. Conyers. Thank you.
Mrs. Crawford, the irony of your situation that brings you
here today is that, of all things, it was the Keystone
Pipeline, of all the businesses that could ever be imagined.
Here is an issue so controversial that the President still
hasn't announced what he is going to do, and these are the same
people that visited you. I think you said, in effect, they told
you that you couldn't win anyway, that you ought to cooperate a
little bit more. Isn't that the gist of your testimony?
Ms. Crawford. Yes, sir. And in court transcripts, there
were comments made by their attorneys that said she will have
her day in court, but they are not going to win under this
statute, or we are not going to let one landowner stand in the
way of a multi-billion-dollar pipeline that is for the public
Our position is that until you prove it is for the public
good, and if you are unwilling to provide any documents, then
the only assumption I can make is that it is for private gain.
So it is a foreign corporation using Texas to push a product
through to export it for someone else, and that, sir, is not
for the public good.
I am not against eminent domain if someone is bringing
water to a community or building a road or building a hospital.
But they are taking my land because they need a way to get
product from Canada to probably foreign markets. That is not
Mr. Conyers. Well, I am glad to hear you say that, because
this is a question of how far should eminent domain be allowed
to go. And here, we are not talking about a clean American
product. Here we are talking about a product that is so
controversial, with sands and detriment and debris--I can't
adequately describe what the scientific issue is with the XL
Pipeline, but for them of all companies in this country to tell
you that we can take it anyway because we are going to extend
economic development and we are going to claim it is for a
public purpose, I just think you are to be commended for
continuing this battle, and I am glad that the Chairman has had
another hearing on this. Would you make your final comment?
Ms. Crawford. Well, I am just a farmer, so all this
legalese is very difficult for me. But from my perspective, it
seems a bit--it is hypocrisy to have a bill that claims to be
so concerned about the property rights of individuals but then
provides an exclusion for the guy with the biggest hammer, and
he is beating us over the head with it. That seems to be a
Mr. Conyers. Thank you very much.
Mr. Franks. And I thank the gentleman, and I now recognize
the gentleman from Virginia, Mr. Scott, for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Bullock, just a couple of questions on the technical
aspects of the bill. If you are in violation, what are the
sanctions to be applied? Is it just loss of economic
development funds? Is there any cloud over the title of the
Mr. Bullock. Not from my understanding of the bill, my
reading of it.
Mr. Franks. Sir, can you pull your microphone?
Mr. Bullock. Sorry. I am a litigator, so I have not
litigated that. But from my understanding, it would be simply a
loss of Federal economic development funds.
Mr. Scott. There is no cloud over the title of the land?
Mr. Bullock. I don't see how that could be. As I mentioned
before, the property owners that are fighting this or are in
dispute with local governments and so forth would still have
the ability to raise whatever the claims they might within the
state court litigation in which this has been taking place.
Mr. Scott. Well, if it is public good but for economic
development, if you can take it, this bill would just say if it
is for economic development, you have to give up some Federal
funds. It doesn't stop the proceedings from going forward.
Mr. Bullock. Correct, and that is why I think it is a
balanced approach. It is not the Federal Government coming in
and overriding decisions made in the state courts or providing
some type of substantive rights to it. It is simply saying
these are scarce Federal economic development funds; we don't
want these funds to be used to facilitate economic----
Mr. Scott. Okay. And if you are in violation but don't do
anything for 7 years, you just let it stay there before you
develop it, are there any sanctions?
Mr. Bullock. No, I think it is a 7-year limit. So I think
that that is something that is----
Mr. Scott. So if you haven't done anything for 7 years, you
are home free?
Mr. Bullock. Well, I think, from my reading of it, that is
a way to balance it so you do not have a situation where
property is taken for a supposed public purpose and then turned
around and given to private development interests. The 7 years
allows, I think, for a bit of a compromise, where if you wait
for 8 or 9 years, perhaps you could do that and sell it for
private development purposes; or, as I was responding to
Representative Nadler before, is that even if it is taken for a
school and the government decides that they don't need a school
anymore, they can still use it for another public project,
whether it is a public park or----
Mr. Scott. Or they could wait 7 years and give it to a
Mr. Bullock. Yes, I think that is right. Again, it is a way
to try to balance not locking the government in perpetuity to
having these restrictions on it, but still would prevent a
situation where the government----
Mr. Scott. Okay. I am not arguing that fact. I am just
trying to get some facts. If the city were to take the property
and, rather than give it to a private entity, gave it to a
public-owned redevelopment authority, would that be okay?
Mr. Bullock. Well, it would depend on what the public
redevelopment authority did with it.
Mr. Scott. Economic development.
Mr. Bullock. Yes. I think if they transferred it to, then,
private parties, which is typically what redevelopment agencies
do, then the restrictions would still kick in.
Mr. Scott. So if the redevelopment authority didn't give it
to private people for the first 7 years, then they would be
Mr. Bullock. I think that that is right.
Mr. Scott. What if they gave it to a non-profit, not a for-
Mr. Bullock. For a non-profit?
Mr. Scott. Right. Does the language in the bill say you
can't give it to a for-profit private agency, for profit?
Mr. Bullock. I would have to look at the particular
provisions of it. I can't remember exactly what it would be.
It would be important, though, to prevent a situation like
what was happening in New London, and I think the bill does do
this by preventing these leasehold agreements, where I think
the bill is quite careful to try to prevent the government from
doing like what happened in New London, where the property was
originally given to a non-profit development corporation called
the New London Development Corporation, but then they were
going to lease that land for $1 a year for the next 99 years to
private developers. That bill addresses something like that and
prevents that situation from occurring.
Mr. Scott. Dr. Beito, are you a lawyer? Dr. Beito?
Mr. Beito. Me?
Mr. Scott. Yes.
Mr. Beito. No, no.
Mr. Scott. Does anybody know what effect this part of the
bill says that essentially waives the 11th Amendment to the
Constitution, what effect that would have on the application of
the 11th Amendment? It seems to me you just can't say the
Constitution doesn't apply to this bill. I don't think that has
much effect at all. Does anybody disagree with that?
Mr. Bullock. I don't think it would. You know, the one
thing it would do and that might be in there to allow for a
private cause of action against folks, which I think is
important to do to make sure it is enforced. However, it would
not be for money damages. I mean, the property owner would not
have the ability under this bill to enforce the provisions of
it to gain any type of monetary damages, which would
Mr. Scott. A statute cannot waive the application of a part
of the United States Constitution; is that right?
Mr. Bullock. Absolutely. The Constitution is paramount.
That is true.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Franks. And thank you, Mr. Scott.
This concludes today's hearing. So I want to thank the
witnesses again for being here, thank the Members for their
attendance, and those that were in the audience.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
I do thank the witnesses again, and I thank the Members and
the audience, and this hearing is adjourned.
[Whereupon, at 11:25 a.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record