[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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