[Congressional Record Volume 164, Number 123 (Monday, July 23, 2018)]
[House]
[Pages H6610-H6616]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             PRIVATE PROPERTY RIGHTS PROTECTION ACT OF 2017

  Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass 
the bill (H.R. 1689) to protect private property rights.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 1689

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Private Property Rights 
     Protection Act of 2017''.

     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 used for 
     economic development within 7 years after that exercise, if 
     that State or political subdivision receives Federal economic 
     development funds during any fiscal year in which the 
     property is so used or intended to be used.
       (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. In addition, the State 
     or political subdivision must pay any applicable penalties 
     and interest to reattain eligibility.

     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--(1) owner of private property 
     whose property is subject to eminent domain who suffers 
     injury as a result of a violation of any provision of this 
     Act with respect to that property; or (2) any tenant of 
     property that is subject to eminent domain who suffers injury 
     as a result of a violation of any provision of this Act with 
     respect to that property, may bring an action to enforce any 
     provision of this Act in the appropriate Federal or State 
     court. A State shall not be immune under the 11th Amendment 
     to the Constitution of the United States from any such action 
     in a Federal or State court of competent jurisdiction. In 
     such action, the defendant has the burden to show by clear 
     and convincing evidence that the taking is not for economic 
     development. Any such property owner or tenant may also seek 
     an appropriate relief through a preliminary injunction or a 
     temporary restraining order.
       (b) Limitation on Bringing Action.--An action brought by a 
     property owner or tenant under this Act may be brought if the 
     property is used for economic development following the 
     conclusion of any condemnation proceedings condemning the 
     property of such property owner or tenant, but shall not be 
     brought later than seven years following the conclusion of 
     any such proceedings.
       (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. REPORTING OF VIOLATIONS TO ATTORNEY GENERAL.

       (a) Submission of Report to Attorney General.--Any--(1) 
     owner of private property whose property is subject to 
     eminent domain who suffers injury as a result of a violation 
     of any provision of this Act with respect to that property; 
     or (2) any tenant of property that is subject to eminent 
     domain who suffers injury as a result of a violation of any 
     provision of this Act with respect to that property, may 
     report a violation by the Federal Government, any authority 
     of the Federal Government, State, or political subdivision of 
     a State to the Attorney General.
       (b) Investigation by Attorney General.--Upon receiving a 
     report of an alleged violation, the Attorney General shall 
     conduct an investigation to determine whether a violation 
     exists.
       (c) Notification of Violation.--If the Attorney General 
     concludes that a violation does exist, then the Attorney 
     General shall notify the Federal Government, authority of the 
     Federal Government, State, or political subdivision of a 
     State that the Attorney General has determined that it is in 
     violation of the Act. The notification shall further provide 
     that the Federal Government, State, or political subdivision 
     of a State has 90 days from the date of the notification to 
     demonstrate to the Attorney General either that: (1) it is 
     not in violation of the Act; or

[[Page H6611]]

     (2) that it has cured its violation by returning all real 
     property the taking of which the Attorney General finds to 
     have constituted a violation of the Act and replacing any 
     other property destroyed and repairing any other property 
     damaged as a result of such violation.
       (d) Attorney General's Bringing of Action To Enforce Act.--
     If, at the end of the 90-day period described in subsection 
     (c), the Attorney General determines that the Federal 
     Government, authority of the Federal Government, State, or 
     political subdivision of a State is still violating the Act 
     or has not cured its violation as described in subsection 
     (c), then the Attorney General will bring an action to 
     enforce the Act unless the property owner or tenant who 
     reported the violation has already brought an action to 
     enforce the Act. In such a case, the Attorney General shall 
     intervene if it determines that intervention is necessary in 
     order to enforce the Act. The Attorney General may file its 
     lawsuit to enforce the Act in the appropriate Federal or 
     State court. A State shall not be immune under the 11th 
     Amendment to the Constitution of the United States from any 
     such action in a Federal or State court of competent 
     jurisdiction. In such action, the defendant has the burden to 
     show by clear and convincing evidence that the taking is not 
     for economic development. The Attorney General may seek any 
     appropriate relief through a preliminary injunction or a 
     temporary restraining order.
       (e) Limitation on Bringing Action.--An action brought by 
     the Attorney General under this Act may be brought if the 
     property is used for economic development following the 
     conclusion of any condemnation proceedings condemning the 
     property of an owner or tenant who reports a violation of the 
     Act to the Attorney General, but shall not be brought later 
     than seven years following the conclusion of any such 
     proceedings.
       (f) Attorneys' Fee and Other Costs.--In any action or 
     proceeding under this Act brought by the Attorney General, 
     the court shall, if the Attorney General is a prevailing 
     plaintiff, award the Attorney General a reasonable attorneys' 
     fee as part of the costs, and include expert fees as part of 
     the attorneys' fee.

     SEC. 6. 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 and tenants 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 and Tenants.--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 
     and tenants under this Act.

     SEC. 7. REPORTS.

       (a) By Attorney General.--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 violations reported by property owners and 
     tenants under section 5(c) of this Act;
       (3) identify the percentage of minority residents compared 
     to the surrounding nonminority residents and the median 
     incomes of those impacted by a violation of this Act;
       (4) identify all lawsuits brought by the Attorney General 
     under section 5(d) of this Act;
       (5) 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
       (6) discuss all instances in which a State or political 
     subdivision has cured a violation as described in section 
     2(c) of this Act.
       (b) Duty of States.--Each State and local authority that is 
     subject to a private right of action under this Act shall 
     have the duty to report to the Attorney General such 
     information with respect to such State and local authorities 
     as the Attorney General needs to make the report required 
     under subsection (a).

     SEC. 8. 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. The taking of farmland and rural property will 
     have a direct impact on existing irrigation and reclamation 
     projects. Furthermore, the use of eminent domain to take 
     rural private property for private commercial uses will force 
     increasing numbers of activities from private property onto 
     this Nation's public lands, including its National forests, 
     National parks and wildlife refuges. This increase can 
     overburden the infrastructure of these lands, reducing the 
     enjoyment of such lands for all citizens. 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. 9. 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. 10. RELIGIOUS AND NONPROFIT ORGANIZATIONS.

       (a) Prohibition on States.--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 
     of a religious or other nonprofit organization by reason of 
     the nonprofit or tax-exempt status of such organization, or 
     any quality related thereto 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) Prohibition on Federal Government.--The Federal 
     Government or any authority of the Federal Government shall 
     not exercise its power of eminent domain over property of a 
     religious or other nonprofit organization by reason of the 
     nonprofit or tax-exempt status of such organization, or any 
     quality related thereto.

     SEC. 11. REPORT BY FEDERAL AGENCIES ON REGULATIONS AND 
                   PROCEDURES RELATING TO EMINENT DOMAIN.

       Not later than 180 days after the date of the enactment of 
     this Act, the head of each Executive department and agency 
     shall review all rules, regulations, and procedures and 
     report to the Attorney General on the activities of that 
     department or agency to bring its rules, regulations and 
     procedures into compliance with this Act.

     SEC. 12. SENSE OF CONGRESS.

       It is the sense of Congress that any and all precautions 
     shall be taken by the government to avoid the unfair or 
     unreasonable taking of property away from survivors of 
     Hurricane Katrina who own, were bequeathed, or assigned such 
     property, for economic development purposes or for the 
     private use of others.

[[Page H6612]]

  


     SEC. 13. DISPROPORTIONATE IMPACT.

       If the court determines that a violation of this Act has 
     occurred, and that the violation has a disproportionately 
     high impact on the poor or minorities, the Attorney General 
     shall use reasonable efforts to locate former owners and 
     tenants and inform them of the violation and any remedies 
     they may have.

     SEC. 14. 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--
       (i) to public ownership, such as for a road, hospital, 
     airport, or military base;
       (ii) to an entity, such as a common carrier, that makes the 
     property available to the general public as of right, such as 
     a railroad or public facility;
       (iii) for use as a road or other right of way or means, 
     open to the public for transportation, whether free or by 
     toll; and
       (iv) for use as an aqueduct, flood control facility, 
     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;
       (F) taking private property for use by a utility providing 
     electric, natural gas, telecommunication, water, wastewater, 
     or other utility services either directly to the public or 
     indirectly through provision of such services at the 
     wholesale level for resale to the public; and
       (G) redeveloping of a brownfield site as defined in the 
     Small Business Liability Relief and Brownfields 
     Revitalization Act (42 U.S.C. 9601(39)).
       (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. 15. LIMITATION ON STATUTORY CONSTRUCTION.

       Nothing in this Act may be construed to supersede, limit, 
     or otherwise affect any provision of the Uniform Relocation 
     Assistance and Real Property Acquisition Policies Act of 1970 
     (42 U.S.C. 4601 et seq.).

     SEC. 16. 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.

     SEC. 17. 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.

  The SPEAKER pro tempore (Mr. Carter of Georgia). Pursuant to the 
rule, the gentleman from Wisconsin (Mr. Sensenbrenner) and the 
gentleman from New York (Mr. Nadler) each will control 20 minutes.
  The Chair recognizes the gentleman from Wisconsin.


                             General Leave

  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous material on H.R. 1689, currently 
under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I am pleased that the House is considering H.R. 1689, 
the Private Property Rights Protection Act. My bill aims to restore the 
property rights of all Americans that the Supreme Court took away in 
2005.
  The Founders of our country recognized the importance of an 
individual's right to personal property when they drafted the 
Constitution. The Fifth Amendment states: ``nor shall private property 
be taken for public use, without just compensation.''
  In Kelo v. City of New London, the Supreme Court decided that 
economic development could be a public use under the Fifth Amendment's 
Takings Clause. In a 5-4 decision, the Court held that the government 
could take private property from an owner--in this case, Susette Kelo--
to help a corporation or private developer--in this case, Pfizer.
  The now infamous Kelo decision generated a massive backlash. As 
former Justice O'Connor stated: ``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.''
  Even in the 13 years since Kelo, polls show that Americans 
overwhelmingly oppose property being taken and transferred to another 
private owner, even if it is for the public economic good.
  The Private Property Rights Protection Act is needed to restore to 
all Americans the property rights the Supreme Court invalidated. 
Although several States have since passed legislation to limit their 
power to eminent domain, and a number of supreme courts have barred the 
practice under their State constitutions, these laws exist on a varying 
degree.
  H.R. 1689 would prohibit State and local governments that receive 
Federal economic development funds from using economic development as a 
justification for taking property from one person and giving to another 
private entity. Any State or local government that violates this 
prohibition will be ineligible to receive Federal economic development 
funds for 2 years.
  The protection of property rights is one of the most important tenets 
of our government. I am mindful of the long history of eminent domain 
abuses, particularly in low-income and often predominantly minority 
neighborhoods, and the need to stop it. I am also mindful of the 
reasons we should allow the government to take the land when the way in 
which land is being used constitutes an immediate threat to public 
health and safety. I believe this bill accomplishes both goals.
  Mr. Speaker, I urge my colleagues to join me in protecting private 
property rights for all Americans and limiting the dangerous effects of 
the Kelo decision on the most vulnerable in our society.
  Mr. Speaker, I reserve the balance of my time.
  Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I claim the time in opposition to H.R. 1689, the Private 
Property Rights Protection Act of 2017.
  While I believe this bill is well intentioned, it is the wrong 
approach to a serious problem. It seeks to prevent abuse of eminent 
domain power, but its provisions could cripple the finances of State 
and local governments without even providing a remedy to the victims of 
an unjust taking.
  In Kelo v. City of New London, the Supreme Court upheld the right of 
a municipality to use eminent domain authority to take private property 
and to transfer it to another private entity for a public purpose. 
Building on a century of precedent defining public use to include a 
public purpose, the Court held such a transfer did not violate the 
Fifth Amendment's Takings Clause, which provides that no person's 
private property shall be taken for public use without just 
compensation.
  Critics of the Kelo decision believe that the Court overreached and 
that eminent domain should be exercised only when the taken property 
will be owned by the government or by a private entity operating as a 
public utility.

                              {time}  1545

  H.R. 1689 would overturn Kelo by prohibiting any State or local 
government that receives Federal economic development funds from using 
eminent domain to transfer private property to another private entity 
for the purpose of economic development.
  The bill broadly defines economic development funds to include any 
Federal funds distributed to States or localities under laws designed 
to improve or increase their economies. Should a State or local 
government violate this prohibition, it is subject to the loss of all 
such funds for 2 years.
  This draconian remedy could potentially devastate the finances of 
State

[[Page H6613]]

and local governments. Even projects unrelated to takings could lose 
funding, and cities could face bankruptcy simply by incorrectly 
guessing whether a given project would sufficiently qualify as being 
for a public use. The potential loss of such funding would also have a 
chilling effect on a government's willingness to use eminent domain to 
promote legitimate economic development projects.
  Even if a government never takes a prohibited action, it would likely 
be adversely impacted by this bill. Just the potential loss of 
significant Federal funding may make it impossible for a government to 
sell municipal bonds or could require a government to pay inordinate 
interest rates given the possibility that it might, at some point in 
the future, use eminent domain improperly and thereby lose all Federal 
economic aid and, with it, the ability to repay the bonds.
  The power of eminent domain is an extraordinary one and it should be 
used with great care. Historically, there are examples of States and 
localities abusing eminent domain for purely private gain or to favor 
one community at the expense of another. When used inappropriately, 
this power has wrecked communities for projects, resulting in little 
economic benefit.
  When used appropriately, however, eminent domain is an important 
tool, making possible transportation networks, irrigation projects, and 
other important public works that support communities and are integral 
to their economic and social well-being.
  Unfortunately, this bill's vague definitions may prohibit projects 
that have a genuine public purpose while allowing others that 
historically have abused eminent domain.
  For example, this bill allows 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.'' That would seem 
to include a stadium, which is privately owned and available for use by 
the general public as of right.
  On the other hand, communities could be barred from using eminent 
domain to pursue affordable housing projects if they are built using a 
public-private partnership, such as the HOPE VI program, which uses 
Federal money to encourage private development of mixed-income housing.
  Yet another shortcoming of the bill is that it does not actually help 
an aggrieved property owner or tenant because it would not allow them 
to sue to stop the allegedly prohibited taking. The bill only 
authorizes suit after a condemnation proceeding has concluded, when it 
is too late.
  In addition, injured persons would not be entitled to any damages 
other than the just compensation they got at the time of the taking. 
All they could get is the psychic satisfaction they may receive from 
bankrupting their community after the fact.
  I would also point out that this bill is unnecessary, since more than 
40 States have already moved aggressively to narrow their eminent 
domain laws in the 13 years since Kelo was decided.
  Finally, H.R. 1689 undermines federalism, and it may raise 
constitutional concerns. Subject to the Takings Clause, local land use 
decisions are generally left to the judgments of State and local 
governments, which are in the best position to weigh local conditions 
and competing interests. This is the essence of federalism, and 
Congress should not be in the business of sitting as a national zoning 
board.
  Also, the loss of all economic funding, even for projects that may 
have nothing to do with takings, is so draconian that it may amount to 
an unconstitutional coercion of State and local governments.
  Accordingly, I oppose this bill, and I would simply make two comments 
to amplify on what I said.
  If you want to stop improper takings, all right, but have a proper 
remedy. Allow the alleged victim of the improper taking to go to court, 
sue for an injunction to stop the improper taking, and get monetary 
damages, if any. That would be at least a reasonable remedy.
  Instead, this bill says that you can't go to court to get an 
injunction; you can't get damages. All you can do is wait until after 
the improper taking has occurred--you already lost your property--then 
you can go to court; and if the court finds you are right, that it was 
an improper use of the eminent domain procedure, then the government 
will lose economic aid for 2 years. It doesn't help the plaintiff. It 
doesn't help the property owner. All it does is bankrupt the community. 
So what is the point?
  Second, as I mentioned before, this could injure communities that 
never do an improper taking because, if I am the mayor, I may not be 
able to float a bond lest somebody think that maybe my successor once 
or twice removed may, 20 years down the line or 10 years down the line, 
do an improper taking. And then the Federal Government would come in, 
stop all economic aid, and we wouldn't be able to repay the bonds.
  So this would impair the ability of States or local governments to 
bond for projects. It wouldn't help the victim--there may even be no 
victim--but it would hurt the government. It makes no sense. This is a 
real problem.
  Mr. Speaker, I urge my colleagues to vote ``no,'' and I reserve the 
balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, there are two flaws in the gentleman's argument. The 
first flaw, we ought to go back to why the Kelo case got to the Supreme 
Court.

  Mrs. Kelo owned a house. She didn't want to sell it. What the city 
decided is that the public purpose that was served was by condemning 
the house and allowing an office building to be built so that the 
community could collect higher property taxes because the office 
building would end up being assessed at a greater value than Mrs. 
Kelo's house. Now, that was the so-called public purpose.
  The thing is, without this legislation, any property that could be 
taxed higher if it were condemned and there were a replacement property 
that was put up could end up being condemned under the Kelo decision, 
and the homeowner would be out of luck and out of their house and have 
to find some more housing.
  The second complaint the gentleman from New York makes is that the 
penalties for violations are too severe. Well, you don't change the 
activity of anybody if there are no penalties at all or the penalty is 
just a tap on the wrist. Just think of what would happen if we still 
had a law that said that everybody had to stop at a red light, but 
there was never a fine or any points or any impact on one's insurance 
policy because there was no moving vehicle violation. Good luck 
everybody in this country getting home from work tonight if that were 
the attitude toward traffic violations. There has to be some kind of a 
severe violation.
  If the city is concerned that they might be violating the terms of 
this bill, they can always go to court and ask that their condemnation 
action be withdrawn. Hopefully, the judge will grant it to be withdrawn 
with prejudice, but at least it can be withdrawn.
  The city can stop this procedure any time they want to before there 
is an actual condemnation judgment that is entered by the court. This 
is designed to slow down and stop legislation when the sole public 
purpose is to collect more property taxes because there is a more 
expensive structure that is being built there.
  Both of these arguments, I think, do not have any merit whatsoever 
and that is why this bill ought to pass.
  Mr. Speaker, I yield the balance of my time to the gentleman from 
Virginia (Mr. Goodlatte), and I ask unanimous consent that he may 
control that time.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. GOODLATTE. Mr. Speaker, I reserve the balance of my time.
  Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I first comment, the gentleman from Wisconsin says that 
we object that the penalty is too severe. We do not object that the 
penalty is too severe. We object that the penalty is irrelevant, that 
the penalty won't help the plaintiff. It won't help to prevent the 
misuse, number one. And number two, it could be a plot that would have 
the practical effect, when there is no misuse, no taking at all, of 
having a deleterious effect on

[[Page H6614]]

the community's bond rating, even when there is no taking.
  If you are going to do this bill and you want to narrow the 
definition of a public purpose, which is the purpose of the bill, I am 
not sure we can do that, given the fact that the Supreme Court has 
decided what it is. Assuming we could do that, fine, but have an 
appropriate remedy, a remedy that would enable the plaintiffs to get an 
injunction against the taking, that would give them monetary damages, 
which is the way we normally do things, not a remedy that will not 
prevent the taking and only will damage a community, whether or not it 
does any improper takings. That doesn't make sense.
  Mr. Speaker, I yield such time as he may consume to the gentleman 
from Maryland (Mr. Raskin).
  Mr. RASKIN. Mr. Speaker, I want to ask the gentleman a couple of 
questions, but I want to preface my questions by saying I think that 
this is a terrible lost opportunity for serious, bipartisan legislation 
to address the problem of eminent domain abuse that has been taking 
place across the country and has been for several decades. I recommend 
to everybody a report of the Cato Institute by David Boaz, which 
summarizes what is taking place around the country.
  One of the worst perpetrators of eminent domain abuse in the country 
is a business developer named Donald Trump. In the mid-1990s, he built 
the casino and the hotel in Atlantic City, but he wanted to evict a 
woman named Vera Coking, who was exactly in the same position as Mrs. 
Kelo would be in a decade later.
  She had lived in this Victorian house at the end of the boardwalk in 
Atlantic City for several decades, but Donald Trump wanted to build a 
VIP limo parking lot to go with the existing hotel. He offered her some 
money and she said: No, thank you. My family has lived in this house 
for a long time. We want to stay here. Our kids go to school here.
  He offered her a little bit more money and she said: No, it's not for 
sale. We are going to stay here.

  So they created something called the Casino Reinvestment Development 
Authority, controlled by, essentially, the Trump Corporation, but they 
got the city to do it, and they tried to force her out. Luckily, the 
Cato Institute and some libertarian lawyers defended her rights.
  But the legislation that is being brought forward today by the 
Republicans now on a totally partisan basis would do nothing for people 
in the situation of Mrs. Coking or Mrs. Kelo, because it doesn't give 
them any rights to sue. All it says is we are going to cut off money to 
government agencies.
  It would be like saying: Well, in a case like that, we will cut off 
money to every city and town in New Jersey, not just Atlantic City, but 
to Newark, New Jersey, and to Freehold, New Jersey. We are going to cut 
off money all over the State.
  It has got nothing to do with the actual problem. It doesn't help the 
people who are actually suffering under the problem of eminent domain 
abuse.
  If we want to help them, let's give them a Federal right of action; 
or, if all you can do is cut off Federal money, cut off the particular 
city that is involved, but not every city or county that is receiving 
money under a Federal program.
  Mr. Nadler made a point which I thought was really interesting, which 
is that this is a solution that doesn't address the problem. If we want 
to save people from getting evicted from their homes under the Kelo 
decision, which President Trump applauded and said he supports 100 
percent, but if we want to save people from policies under the Kelo 
decision, shouldn't we give them rights rather than make some kind of 
Federal subsidy decision which is of constitutional question, in any 
event?
  Mr. NADLER. Will the gentleman yield?
  Mr. RASKIN. I yield to the gentleman from New York.
  Mr. NADLER. Mr. Speaker, I agree with the gentleman. The standard way 
in which someone can vindicate rights is to sue. If the local 
government wants to abuse the rights of a homeowner, let's say, by an 
improper taking, the proper way for us to help is to give them the 
right to sue and to get injunctive relief. Let them go into Federal 
court and get an injunction which says: Do not tear down the building. 
Do not take away title. You can't do it because this is too broad a use 
of taking. It is a violation of the Fifth Amendment.
  This bill won't actually help that person because it gives them no 
rights except the right after they have lost the property. It gives 
them the right to go to court and not get any relief for themselves, 
not get the property back, not get any monetary damages, not get an 
injunction. It gives them the right to go into court and seek to block 
financial aid to the community. So they can say, ``I took revenge on 
the community,'' but what is the point? It doesn't help them.
  Mr. RASKIN. Reclaiming my time, rather than giving actual rights to 
people in the position of Mrs. Kelo or Mrs. Coking, who is going to be 
forced out of her house in Atlantic City, this, instead, places a very 
broad burden on the government and in such a way that it, I think, 
renders the whole legislation constitutionally suspect.
  Mr. Speaker, don't we have constitutional decisions that say the 
government or Congress can't go so far as to punish an entire State 
government for something that one municipality does? Doesn't it seem 
like it is sort of going nuclear in order to get a mosquito?
  I yield to the gentleman from New York.

                              {time}  1600

  Mr. NADLER. I think there are such decisions, and this would seem to 
violate them.
  Mr. RASKIN. Isn't that what the Medicaid decision was all about?
  Mr. NADLER. Yes. The Medicaid decision said you cannot draft the 
local government to exercise a function for the Federal Government, 
which this would seem to do also.
  Mr. RASKIN. Doesn't it also say that we can't threaten to drive you 
out of the Medicaid program entirely because you refuse to accept one 
particular program that we want to impose upon you?
  Mr. NADLER. That is exactly what it said.
  Mr. RASKIN. Not only is this legislation completely illusory in terms 
of not really helping people who have the problem, but it might just be 
struck down.
  Mr. Speaker, how can you cut off the people of Newark, New Jersey, or 
Freehold, New Jersey, because of something that happens in Atlantic 
City, New Jersey? It doesn't even help the people in Atlantic City, New 
Jersey, who are facing the problem with the big real estate developer 
who has bought up all the political power to try to drive somebody out 
of their home.
  Mr. NADLER. I agree with the gentleman. I think the gentleman from 
Maryland makes a very valid point.
  Mr. Speaker, for all these reasons, I oppose this bill. I would 
simply say: We agree there is a serious problem with abuse of eminent 
domain, and we agree there may very well be decent legislation that 
would do something about the problem.
  If you are going to do it, draft legislation that really deals with 
the problem, that is constitutional, that will protect the small person 
such as Mrs. Kelo but that won't bankrupt the community in a way that 
is probably unconstitutional anyway.
  This bill is not the solution. We could, on a bipartisan basis, work 
for an intelligent solution, but this is not it. Accordingly, I urge a 
``no'' vote.
  Mr. Speaker, I urge the defeat of this legislation, and I yield back 
the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, may I inquire how much time I have 
remaining.
  The SPEAKER pro tempore. The gentleman from Virginia has 14 minutes 
remaining.
  Mr. GOODLATTE. Mr. Speaker, I yield myself the balance of my time.
  First of all, the protection of private ownership of property is 
vital to individual freedom and national prosperity. It is also one of 
the most fundamental constitutional principles, as the Founders 
enshrined 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: first, the subsequent use of the property must be for the use 
of the public and, second, that the government must pay the owner just 
compensation for the property.

[[Page H6615]]

  However, more than a decade ago the Supreme Court, in the 5-4 Kelo v. 
City of New London decision, expanded the ability of State and local 
governments to exercise eminent domain powers beyond what is allowed by 
the text of the Constitution, by allowing government to seize property 
under the vague guise of economic development, even when the public use 
turns out to be nothing more than the generation of tax revenues by 
another private party after the government takes property from private 
individuals and gives 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 all property. The 
government now has license to transfer property from those with few 
resources to those with more. The Founders cannot have intended this 
perverse result.
  In the wake of this decision, State and local governments can use 
eminent domain powers to take the property of any individual for nearly 
any reason. Cities may now bulldoze citizens' homes, farms, churches, 
and small businesses to make way for shopping malls or other 
developments.
  To help prevent such abuse, using Congress' constitutional 
legislative powers, it is important Congress finally passes the Private 
Property Rights Protection Act.
  I want to thank Mr. Sensenbrenner for reintroducing this legislation. 
He and I have worked together on this issue for many years, and I am 
pleased that this legislation incorporates many provisions from 
legislation I helped to introduce in the 109th Congress, the STOPP Act.
  Specifically, the Private Property Rights Protection Act would 
prohibit State and local governments from receiving Federal economic 
development funds for 2 years when they use economic development as a 
justification for taking property from one person and giving it to 
another private entity.
  In addition, this legislation grants adversely affected landowners 
the right to use appropriate legal remedies to enforce the provisions 
of the bill and allows State and local governments to cure violations 
by giving the property back to the original owner.
  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 and pipelines, while prohibiting 
abuses of the eminent domain power.
  No one should have to live in fear of the government's taking their 
home, farm, or business simply to give it to a wealthier person or 
corporation. As the Institute for Justice's witness observed during a 
hearing on this bill, using eminent domain so that another richer, 
better-connected person may live or work on the land you used to own 
tells Americans that their hopes, dreams, and hard work do not matter 
as much as money and political influence. The use of eminent domain for 
private development has no place in a country built on traditions of 
independence, hard work, and protection of property rights.

  This legislation has passed the House three times previously, either 
by voice vote or with the support of at least 80 percent of House 
Members in an overwhelmingly bipartisan vote, only to be stalled in the 
Senate. But the fight for people's homes continues, as will this 
committee's efforts to protect Federal taxpayers from any involvement 
in eminent domain abuse.
  Just a few years ago, every single Republican Member voted for the 
very same legislation on the House floor, as did two-thirds of 
Democratic Members. I urge my colleagues to join me in supporting this 
overwhelmingly bipartisan effort.
  I want to respond to some of the issues raised by the gentleman from 
New York and the gentleman from Maryland. Pursuant to Congress' powers 
under the Constitution's Spending Clause, the Private Property Rights 
Protection Act conditions the receipt of Federal economic development 
funds on State and local governments agreeing not to use eminent domain 
for private economic development takings.
  Federal law currently permits expending Federal funds to support the 
use of eminent domain for these abusive takings. In our current 
economy, and with the Federal Government running deficits every year, 
Congress should not be spending American taxpayers' scarce economic 
development funds to support State and local governments that 
unconstitutionally deprive hardworking Americans of their homes, farms, 
and small businesses.
  By conditioning the receipt of Federal economic development funds on 
State and local governments agreeing not to take property for 
commercial development, this provision in the bill ends the Federal 
Government's complicit support of eminent domain abuse.
  The enforcement provisions in the base bill are comprehensive, and 
they include all manner of relief from preliminary injunctions and 
temporary restraining orders, to the awarding of attorney's fees, to 
the ability of the State or locality to return or replace the property 
to avoid the penalties under the bill. Even those comprehensive 
enforcement mechanisms, on their own, are not enough. We must end 
Federal monetary support for economic development takings.
  If State governments retain control over eminent domain decisions, 
then, of course, those States should be held responsible for the 
State's own actions. But in Virginia, my State, local governments are 
not allowed to condemn property for economic development purposes. In 
Virginia, the so-called Dillon Rule provides that localities can act 
only in areas in which the State general assembly has granted clear 
authority.
  So, in Virginia, local governments have only the authorities granted 
to them by the General Assembly, and the Virginia General Assembly has 
empowered local governments in Virginia to condemn property for roads, 
schools, and other public uses, but local governments do not have the 
right to condemn property for economic development.
  In fact, back in 2000, Virginia Beach city government tried to 
condemn private property on the oceanfront to help a Hilton hotel build 
a parking garage, but Circuit Court Judge H. Thomas Padrick, Jr., ruled 
that Virginia Beach could not use eminent domain for that purpose, 
finding that the legislature did not intend to allow a city to condemn 
property solely for its economic benefit and development.
  Indeed, after the Supreme Court handed down its notorious decision in 
the Kelo case, a spokeswoman for the Virginia attorney general said the 
following:

       As per the constitution of Virginia, public use in eminent 
     domain is defined by the general assembly. There is no 
     proviso in our constitution to use eminent domain for 
     economic development.

  As a result of the Kelo decision, this bill won't have an impact on 
Virginia.
  Finally, regarding Representative Raskin's comments about how the 
bill relates to the Supreme Court's NFIB v. Sebelius case, the 
ObamaCare case, the bill, as currently drafted, would certainly not run 
afoul of anything in it for several reasons.
  The court made clear in the case that Congress may attach appropriate 
conditions to Federal taxing and spending programs to preserve its 
control over the use of Federal funds. That is what the bill does: deny 
the use of Federal economic development funds to jurisdictions that 
have demonstrated their willingness to abuse eminent domain and thereby 
demonstrated their willingness to use Federal funds to further future 
abuses of eminent domain if allowed to do so.
  The court went on to cite the South Dakota v. Dole case, in which a 
Federal law threatened to withhold 5 percent of a State's Federal 
Highway Fund if the State did not raise its drinking age to 21. The 
court found that the condition was directly related to one of the main 
purposes for which highway funds are expended: safe interstate travel.
  In the same way, the bill's restrictions are directly related to one 
of the main purposes for which Congress should intend Federal economic 
development funds to be expended: economic development that does not 
infringe on the property rights of individual property owners.
  The court pointed out that, in the South Dakota v. Dole case, the 
Federal funds at stake constituted less than one-half of 1 percent of 
South Dakota's budget at the time; whereas, the potential loss of funds 
at issue in NFIB v.

[[Page H6616]]

Sebelius were such that Medicaid spending accounts were over 20 percent 
of the average State's total budget.
  No one is claiming that Federal economic development funds, however 
defined, would constitute anything near 20 percent of a State's total 
budget.
  In NFIB v. Sebelius, the court also cited the Pennhurst v. Halderman 
case and characterized its holdings as, though Congress' power to 
legislate under the Spending Clause is broad, it does not include 
surprising participating States with post-acceptance or retroactive 
conditions.
  That, of course, is not the case with the bill, which applies its 
prohibition upon the receipt of Federal economic development funds only 
after a State had been found by a court, in a final judgment on the 
merits, to have violated the act.

  Finally, not only is it implausible that the bill would ever run 
afoul of Supreme Court precedent due to the relatively small size of 
Federal economic development funds in the context of a State or a 
locality's entire annual budget; the bill contains a further safety 
valve in that it gives the attorney general the discretion to 
promulgate precisely which Federal funding streams are Federal economic 
development funds under the bill. So, if a constitutional issue ever 
arose, the attorney general could simply scale back the size of its 
promulgated list accordingly.
  It seems to me it can't be claimed this bill is unconstitutional 
under any reasonable reading of any existing Supreme Court precedent.
  Regarding federalism values generally, the key point is that there 
actually is a very close nexus between Federal development funding and 
eminent domain, even if the funding is not used on eminent domain 
projects.
  Money is fungible, of course. If the bill were amended to disallow 
only the use of Federal economic development funds on eminent domain 
projects, it would be very easy for an offending jurisdiction to game 
the system by artificially segmenting a project into parts that use 
eminent domain and parts that don't. That segmentation would happen 
both vertically, by dividing a project into stages, and horizontally, 
by dividing a single project into very small geographic segments.
  The entirely appropriate federalism message the base bill sends to 
States and localities is that, if you are going to do economic 
development but abuse eminent domain, that is fine, but you will be on 
your own for a while and go without Federal taxpayer complicity in your 
abuse of eminent domain.
  Mr. Speaker, this is good legislation. The concerns addressed by the 
minority are addressed clearly in this legislation. There is strong 
bipartisan support for this bill. Mr. Speaker, I urge my colleagues to 
pass this and, once again, send it to the United States Senate, where 
we can only hope that they will someday see the wisdom of protecting 
the constitutional rights of law-abiding citizens.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Virginia (Mr. Goodlatte) that the House suspend the 
rules and pass the bill, H.R. 1689.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

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