Private Property Rights Protection Act of 2005

Mr. Speaker, my fellow colleagues on both sides of the aisle, and our constituents who may be listening to this hour this evening, we are going to talk about something that is well known to the general public, and that is the subject of eminent domain. It is well known, maybe not particularly liked by the general public, but certainly it is well known that, under the power, the government has the power under the Constitution and the fifth amendment to take private property for public use. This is something that has been recognized for 200 years.

An example, the obvious example, of course, of public use would be for a school in a community that is growing rapidly, and youngsters need a place to get that public education. That is a public use of the power of eminent domain, that ability for a government entity, the Federal Government, the State government, a county government or municipal city government to literally take a person's private property for public use purposes and, of course, with just, fair market value compensation. That is something that we all recognize.

As I said, when it is the individual who may have that little tract of land that they have owned for their lifetime and it was willed to them by their parents and willed to their parents by their grandparents, and maybe it is 50 acres, maybe it started out as farmland and ended up as just a homestead and a paid-for residence and a front porch with rocking chairs and a great view and clean air and clean environment and a place for the children and the grandchildren to come and play on the weekends. It is pretty painful indeed when John Q. Public comes knocking on the door. It may be the local school board, good, dedicated men and women who are trying to provide education for the children in the community; and that 30 acres is the last remaining plot of land in the whole county where a new high school is desperately needed because of development, economic development, new subdivisions, new roads.

And people, of course, are powerless in the face of that authority of eminent domain. The only recourse they have, of course, is a plea and an appeal for fair market value of the land that they do not want to sell, they are forced to sell under this constitutional right of eminent domain.

Maybe there is some negotiation. Maybe they are not happy with what is the public entity that is doing the taking, has set the price; and the homeowner, the property owner, small business owner, feels that that is not fair. Then certainly they have the right to appeal in our court system and our judicial system to the superior court of the judicial area in which they happen to lie.

My colleagues, I think you all know that the Supreme Court on June 23 of this year, 2005, made a decision, a narrowly split decision, as this court has done in so many other cases, particularly regarding our traditional values. That is not the purpose of this debate and this discussion, Mr. Speaker, tonight on the floor of this House.

But this 5 to 4 decision all of a sudden expanded this power of eminent domain to include the taking of a person's home, small business for economic development, that is now being interpreted by this split decision of the Supreme Court to qualify under the fifth amendment, under the Constitution, the right to take someone's property by eminent domain for economic purposes, redefining, completely and totally redefining this definition of public use that probably a sixth grader would answer correctly if you asked them: Well, give us an example of public use. They would say a road or a bridge or possibly a public library, certainly a school, maybe even a sewer line easement, a natural gas line easement.

But to suggest to them that, oh, no, now we are talking about taking somebody's property for the purpose of increasing the tax revenue. Let me just kind of set the scenario for my colleagues just as a perfect example.

Under this ruling, June 23, 2005, this atrocious, we think, and of course on the floor of this body of this House with overwhelming bipartisan support, not unanimous but overwhelming bipartisan support, we expressed our outrage over this, the sense of the House, a concurrent resolution expressing our absolute outrage over this decision.

What it basically says and what prompted and predicated this Supreme Court decision was a case in the State of Connecticut, the City of New London, and New London in this case being the defendant, the plaintiff was the property owner, Kelo. Their property was being taken for the purpose of nothing other than increasing the tax base, the tax revenue of that particular section of town where their property happened to be.

The justification for it from the standpoint of the City of New London, that local jurisdiction, was, well, if we are able to take this property, which in our opinion, Mr. Speaker, I think everybody knows I am not a lawyer nor am I a real estate expert, I am just a little old meat and potatoes OB/GYN physician. But what they were going to

do was take this property so they could redevelop it. And, again, maybe it could have been a bakery, a small business that some immigrant family two generations came to this country, could not even speak English, but started on a street corner selling bagels and finally developed this little business and had that loyalty and that customer base and that value which we call blue sky on that business; and yet the tax revenue from that little business could be a house, could be your home, was not sufficient.

So the local government entity, in this case the City of New London, decides, well, you know, if we can take that property, that business, indeed maybe even that church or synagogue or mosque, and we can take it by the power of eminent domain and get this broad definition of public use, and we could say, gosh, you know, the increased revenue will allow us to build more soccer fields in the county, more bike trails in the county. Well, maybe, just maybe, and I think without a shadow of a doubt Kelo felt that they did not want another soccer field and they did not want another bike trail, they wanted their property which had been willed to them and their family. They had obtained that property in a legal way. It was theirs. They are good public citizens, pay their taxes on time, contribute to the community, send their children to the public schools, volunteer for the booster's club, doing everything they can to make that community a better place to live.

But can they help it that their business base was such that they only had a certain amount of revenue in any one year? There were just so many doughnuts and bagels to be sold. So they did not have an opportunity to have a high value on their business so that the local community could tax them, and so now they are going to come along and they are going to take that business so somebody else could come in.

Mr. Speaker, in no way am I disparaging any good companies, but I mean, a Ritz-Carlton, even a Starbucks in this area that needs redeveloping pays a lot more taxes; and, yes, maybe some of that money could be put to the public use. But it is not at all what we understand and know and have known for 200 years the definition of a public use.

So that is what we are talking about here, my colleagues, on both sides of the aisle. That is why we are here tonight. I am very fortunate that I have several of my colleagues who have joined me during this hour. They know how important this issue is. It is an important issue of the right to property, second only maybe to life and pursuit of happiness. But the right to property, Mr. Speaker, is one that cannot, should not be abridged.

We are going to have legislation, we are going to have legislation this week, so this is a timely hour so we can explain to our colleagues a little bit about what this bill coming through the House, hopefully the Senate will have a companion bill, this bill coming through the House Judiciary Committee. This majority, this Republican majority is not going to let this Kelo v. New London decision stand, and my colleagues are here with me tonight to talk about that.

The gentlewoman from Tennessee (Mrs. Blackburn) is here, and I want at this time to call on her for her remarks, because I know she cares so much about this issue and cares about the folks back in Tennessee.

Mr. Speaker, I thank the gentlewoman from Tennessee (Mrs. Blackburn). It gives me a little bit of a segue as she used the term ``activist judges'' and I think that that absolutely, Mr. Speaker, is what is going on here. We are in the process, of course, we have just confirmed our new Supreme Court Chief Justice, and now there will be hearing soon in the Senate Committee on the Judiciary for the confirmation, hopefully, of a judge to replace retiring Justice Sandra Day O'Connor. And all the talk, of course, is about the litmus test of abortion. Has the judge, the candidate judge in this instance, a judge, a circuit court judge of some 19 years of experience, what is his record on abortion? Is he pro-life? Is he pro-choice?

Although our colleagues on the other side of the aisle, the members especially of that Committee on the Judiciary, say there is no litmus test; it is not, and that is a huge concern, I think, that issue for the American public. And they are watching very, very closely these proceedings that are going to occur, the hearings in the Senate Judiciary Committee. But this is an example of other things of judicial activism, of legislating literally from the bench. They may not rise quite to the level of the issue of what happened in 1973 in Roe v. Wade, but this is an important issue as is taking God's name, the name of God out of the Pledge of Allegiance.

This is hugely important, and I think we are going to go a little deeper in the hour. I am very pleased that one of our former judicial members probably will be talking to these same issues. At this point, I would first like to call on the gentlewoman from Ohio (Mrs. Schmidt), one of our newest Members elected to this body recently in a special election. The gentlewoman and I have had conversations about this issue since June 23, 2005, shortly after she got here, as well as the outrage that she has expressed and the concerns that her constituents have over this back in Ohio.

Mr. Speaker, I thank the gentlewoman from Ohio, and I thank her for bringing this right down on a personal level because this is personal and she described it to perfection.

I did not go into the details of what happened in New London, Connecticut. Maybe we will touch on that in just a minute. But the gentlewoman from Ohio (Mrs. Schmidt) is absolutely right. That shopping center mogul had the opportunity to offer a fair price, an attractive price, and ended up buying most of the property without exercising or some government entity on his behalf exercising the power of eminent domain.

That gentleman, that 82-year-old gentleman that the gentlewoman described so well, that felt the presence of his wife within the walls of that structure, that German structure, it is okay if he smells popcorn and doughnuts and sees youngsters going to the theater that has been developed all

around him. He has the right of property ownership to have that shrine of his, that little shrine right in the middle, and if they want another shot at it after he is gone and they want to deal with his heirs and his children, his grandchildren, then let him offer a price and buy the property.

Mr. Speaker, I want to point your attention to this first poster I have. I do not have many, but this is exactly what the gentlewoman was talking about.

It shows in the baby carriage homeowners and small businesses in the baby carriage. It shows the wheeler dealer with the lollipop. You cannot see it, but on that lollipop, the attraction of the lollipop, is the enticement or the power of eminent domain. And this little youngster on the other side is that shopping center mogul that the gentlewoman was talking about or maybe it is the pharmaceutical company that wanted to build this new research development center in the heart of New London, Connecticut. But not only did they want to develop the property for this research center, God knows we need research and I pay tribute to some of our pharmaceutical companies that bring us these wonder drugs, but they did not, in my opinion, the opinion of Suzette Kelo and the other homeowners that had 15 homes in and around that area, they did not have to take that as well. It was absolutely unnecessary.

And that is the whole issue here, this ability to take, the powerful, in conjunction with a local government jurisdiction, for this expanded purpose of public use or economic development and a higher tax base, somebody's God-given right, constitutional-given right to their own property.

We talked a little bit about the courts. I think at this time it is entirely fitting and appropriate to call on my good friend and colleague from the great State of Texas who knows a little bit about the courts. We are talking about municipal, State, superior, Federal, district, circuit and Supreme Court; and I yield to my colleague, the gentleman from Texas (Mr. Poe).

Mr. Speaker, I thank the gentleman from Texas, the judge, for sharing those thoughts with us.

I wanted to assure the judge, as he well knows, that we intend to do something about it this week, and this is what H.R. 4128 does. It protects private property rights, and we will get into that in just a few minutes.

Earlier we heard, Mr. Speaker, from our colleague from Ohio, and the gentlewoman talked about her father in fact who built some of these little German homes, he being of German ancestry. I am not sure that this next poster that I have got is a picture of a home in Ohio, for that matter even in New London, Connecticut, but, boy, it sure has a German look to me.

I have been to Germany a time or two, a lovely country, and I have seen some residences, some houses, free-standing houses, look a little bit like that. But look at that sign in the front yard, for sale, not by owner, but by government, and that is what we are talking about here. That is exactly what the gentlewoman from Ohio was describing in her district, and this is what the people, quite frankly, in New London, Connecticut, were fighting for.

As I said a little earlier, a developer who wants to put up a mega store, a big box, a new luxury five-star hotel or a four-star restaurant, or whatever they want to do, expand that shopping center I think we were hearing about earlier, let them do it and let them buy what property they can buy. If a price is offered that is attractive enough, you will have plenty of willing sellers.

And if you have one or two that are unwilling, for the reasons the gentlewoman was describing, I think she pointed out a gentleman 82 years old, been married 50 years, lost his wife, been in the home their whole married life, let some creative architect figure out a way to build around that home and still have an attractive development. It can be done, no question about that, Mr. Speaker.

This next poster, my colleagues, I think is the most important of the three. Because while I have emphasized that under this new expanded ruling of this activist court, this 5-4 decision, that a person's home, where they have raised their children and maybe even their grandchildren and lost their spouse, can be taken for this expanded so- called public use called economic development, bigger tax base, more bucks, or the small business I described, the little bakery.

But look at this, at this poster, this slide. You recognize it. That is a church. It could just as well be a mosque or a synagogue. A place of worship basically is what it is. Guess how much taxes God pays to the local government? None. None.

So if we allow this decision to stand, there will be plenty of incentive to take a small business or a home where the property taxes are not enough. You know, if it were a bigger home and it had 5,000 square feet instead of 2,000 square feet, you could raise the tax base, and if it were a business. But it is paying some taxes. There is revenue, hopefully a profit. These small business owners are definitely taxed, and that tax goes to support the local community.

So if there is an incentive to take their property when there is a tax base, think about what the incentive is going to be for the local government to take God's property, where there is no tax base. It is tax free. We cannot allow that to happen, Mr. Speaker.

I know my colleagues on both sides of the aisle understand this. I know it from the fact that I brought a resolution to this House floor shortly after June 23, and we had Members on both sides of the aisle running to the voting machine to punch that green light expressing their outrage over this decision. So it is certainly not a partisan outrage. We are all upset about it.

This week we intend to do something about it. Indeed, to take God's property so we can put in some high-tax-paying business, restaurant, hotel for the purposes of increasing that tax base. Then you say, oh yes, but this is for the public good because we are going to have money to build more parks and recreation facilities. Indeed. Indeed.

My colleagues, I mentioned the facts in the New London case, and I will not go into that in any more detail, but listen to some of the arguments in that case. The residents, the petitioners, argued the condemnation by the City of New London constituted a violation of the fifth amendment's public use provision: Nor shall private property be taken for public use without just compensation. The judge from Texas talked about that. The gentlewoman from Ohio and the gentlewoman from Tennessee all talked about that.

The residents argued that economic development in and of itself does not constitute a public use. But the City of New London, the defendants in this case, argued that, hey, new jobs, increased tax revenue, that is qualification enough for taking as a public use and, therefore, this taking did not constitute a violation of the Fifth Amendment. They also argued that they were operating in accordance with Connecticut law.

Well, unfortunately, unfortunately, Mr. Speaker, the majority, five of our Supreme Court justices, Justice Stevens, Justice Kennedy, Justice Souter, Justice Ginsburg, and Justice Breyer, agreed with the City of New London, and the majority opinion focused on a broad, very broad interpretation of the term public use in the Fifth Amendment.

The opinion states that there is no way to distinguish between economic development from other types of public use development. The majority did not want to second-guess local government. They did not want the State and local government to say a particular development project is for public use. They are the only final arbiters of what is and what is not public use. I think I can say that it was a ridiculous majority opinion.

In the dissenting opinion, Justice O'Connor, Justice Renquist, God rest his soul, Justice Scalia, and Justice Thomas cites the majority opinion for what it is, an abandonment of over two centuries worth of precedent. In the dissenting opinion, Justice O'Connor stresses that the term public use is very explicit and that the Founders intended that the term public use needed to be there. Justice O'Connor writes that the majority's opinion nullifies the term public use, and now State and local government can justify any taking of land from one individual to another to give to another private party if it presents any economic benefit to the tax base or any other aspect of the community.

This, Mr. Speaker, cannot, shall not stand. And I want to take this opportunity tonight during the remaining time that we have to pay tribute to the sensible chairman, who has great wisdom and a lot of common sense, the chairman of the House Judiciary Committee, and I am talking about the gentleman from Wisconsin (Mr. Sensenbrenner). He will bring to this floor, probably on Thursday of this week, H.R. 4128.

I would like to take this time to explain the provisions of that bill, because it is so very important. In this bill, it will say that Congress' power to condition the use of Federal funds will extend to prohibiting States and localities from receiving any Federal economic development funds for a specified period of time if such entities abuse their power of eminent domain, even if only State and local funds are used in that abuse of power.

H.R. 4128 also includes an express private right of action to make certain that those suffering injuries from a violation of the bill will be allowed access to a State or Federal Court to enforce its provisions. It also includes a fee-shifting provision, and listen to this, identical to those in other civil rights laws that allows a prevailing property owner attorney and expert fees as a part of the cost of bringing the litigation to enforce the bill's provision, as it should.

Under H.R. 4128, States and localities will have the clear opportunity, we are going to give them a last chance, to cure any violation before they lose any Federal economic development funds by either returning or replacing the improperly taken property. We are giving them a chance to make amends before the hammer falls.

H.R. 4128 also includes carefully crafted refinements of the definition of

economic development that specifically allows the types of takings that prior to Kelo had achieved a consensus as to their appropriateness. I want to mention some of these.

These exceptions include: Exceptions for the transfer of property to public ownership, to common carriers and public utilities, and for related things like pipelines. I mentioned that earlier.

The bill also makes reasonable exceptions for the taking of land that is being used in a way that constitutes an immediate threat to public health and safety. Of course. That is common sense.

The bill also makes exceptions for the merely incidental use of a public building by a private entity, such as a small privately run gift shop on the ground floor in a public hospital, or the acquisition of abandoned property, and for clearing defective chains of title in which no one can be said to really own the property in the first place.

A good bill, Mr. Speaker. I commend it to my colleagues. H.R. 4128 was introduced by the gentleman from Wisconsin on October 25 of this year. The bill was reported from the Judiciary Committee by a vote of 27 to 3 on October 27, 2005; and I can assure my colleagues that there are not 27 Republican Members of the Judiciary Committee. We have a majority, yes, but a narrow majority. So, clearly, this bill has strong, strong bipartisan support.

Mr. Speaker, in conclusion, this time that we have taken to talk tonight about this situation of the abuse of the power of eminent domain is so critical. It is so critical, and this bill is so important. We need balance. Certainly we need economic development. We need to develop blighted areas in our cities across these States, but we can do it in the right way. And we do not need to violate someone's constitutional and God-given rights of life, liberty and property.

I hope that we have in this time, Mr. Speaker, made a strong case for this. I know my colleagues who spoke earlier spoke well, spoke eloquently, and I am deeply appreciative of their spending a little of their evening tonight to discuss such an important issue. We look forward to Thursday. We look forward to the passage of H.R. 4128 to restore the natural and constitutional right to property.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise in support of H.R. 4128, the Private Property Rights Restoration Act, overwhelmingly bipartisan legislation I introduced along with Agriculture Committee Chairman Goodlatte and Judiciary Ranking Member Conyers.

On June 23, the Supreme Court in a 5 to 4 decision in the case of Kelo v. City of New London transformed established constitutional principles when it held that the fifth amendment's public use clause permitted government to seize the private property of one small homeowner and to give it to a large corporation for a private business use.

As the dissent in that case made clear, under the majority's opinion: ``Any property may now be taken for the benefit of another private party. The government now has the license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.''

Reaction to the Kelo decision has united strong opposition from across the political, ideological, and socioeconomic spectrum. The NAACP and the AARP faulted Kelo's failing reasoning by stating: ``The takings that result from the Court's decision will disproportionately affect and harm the economically disadvantaged and, in particular, racial and ethnic minorities and the elderly.''

Representatives of religious organizations have also condemned the failed logic of the Kelo Court, stating: ``Houses of worship and other religious institutions are, by their very nature, nonprofit and almost universally tax exempt. These fundamental characteristics of religious institutions render their property singularly vulnerable to being taken under the rationale approved by the Supreme Court.''

Public reaction to the Kelo decision has also been swift and strong. The protection of private property rights is the number one issue that concerns Americans today, according to a Wall Street Journal/NBC News poll; and by an 11-to-1 margin, Americans say they oppose the taking of private property for private uses, even if it is for the public economic good.

According to an American Survey poll: ``Public support for limiting the power of eminent domain is robust and cuts across demographic and partisan groups.'' Even Justice John Paul Stevens, who authored the Court's 5 to 4 decision, recently acknowledged that if he were a legislator, he would oppose the results of his own ruling by working to change current law. That is what we are doing here today, working to change current law.

A week after the Supreme Court's now notorious Kelo decision, I introduced H.R. 3135, the Private Property Rights Protection Act, to help restore Americans' property rights the Supreme Court took away. On October 25, I introduced an even stronger version of the bill which we are considering today, which has benefited greatly from the contributions of Ranking Member Conyers, Ms. Waters, Mr. Goodlatte, and others, including Mr. Cannon and Mr. Flake.

H.R. 4128 helps restore the property rights of all Americans by establishing a penalty for States and localities that abuse their eminent domain power by denying those States and localities that commit such abuse all Federal economic development funds for a period of 2 years. Under this legislation, there is a clear connection between the Federal funds that would be denied and the abuse Congress is intending to prevent. If States and localities abuse their eminent domain power by using economic development as a rationale for a taking, they shall not receive Federal economic development funds that could contribute to similarly abusive land grabs.

I am very 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 very mindful of the reasons we should allow the government to take land when the way in which the land is being used constitutes an immediate threat to public health and safety. I believe this bill accomplishes both goals.

The legislation contains an express private right of action to make certain that those suffering injuries from a violation of the bill will be allowed to access the State or Federal court to enforce its provisions and includes a fee-shifting provision, identical to those in other civil rights laws, that permits the recovery of attorney and other litigation fees to prevailing property owners. The legislation gives the States and localities the clear opportunity to cure any violation before they lose any Federal economic development funds by either returning or replacing the improperly taken property to the property owner.

H.R. 4128 also includes carefully crafted refinements of the definition of ``economic development'' that specifically allow the types of takings that, prior to the Kelo decision, had achieved a consensus as to their appropriateness. These include takings in which the public itself owns the property, where the property is used by a common carrier or public utility, and for related infrastructure like pipelines, and where the property is abandoned.

Finally, in order to facilitate State compliance with its terms, the bill will not become effective until the start of the first fiscal year following enactment of the legislation, nor would it apply to any project for which condemnation proceedings have begun prior to its enactment.

Mr. Chairman, I urge all of my colleagues to join me in supporting this vital bipartisan legislation that will protect the property rights of the most vulnerable in our society and limit the effect of the now notorious Kelo decision.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 2 minutes to the gentleman from Texas (Mr. Smith).

Mr. Chairman, I yield 2 minutes to the gentlemen from Ohio (Mr. Chabot).

Mr. Chairman, I yield 2 minutes to the gentleman from Texas (Mr. Gohmert).

Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Georgia (Mr. Price).

Mr. Chairman, I yield 2 minutes to the gentleman from Alaska (Mr. Young).

Mr. Chairman, will the gentleman yield?

If unintended transportation consequences

are discovered, I would be happy to work with the gentleman from Alaska (Mr. Young) to fix them in conference.

Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Texas (Mr. Poe).

Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Nevada (Mr. Gibbons).

Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Texas (Mr. Hensarling).

Mr. Chairman, I yield 1\1/2\ minutes to the gentlewoman from Virginia (Mrs. Drake).

Mr. Chairman, I yield 2 minutes to the gentleman from Iowa (Mr. King).

Mr. Chairman, I yield 2 minutes to the gentleman from Arizona (Mr. Flake).

The answer is absolutely.

Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, very briefly, this bill attempts to do what the Federal Government can to reverse the impact of the Kelo decision, and the heart of this bill is to deny Federal economic development funds for 2 years to any States or locality that attempts to use its condemnation powers to take private land for essentially a nonpublic use purpose and to turn around and resell it to another private developer who will bring in more tax revenue.

We have heard time and time and time again on this floor during the last hour that this is wrong. But the Supreme Court has said that it is not wrong if a developer can convince a majority of one on a city council or local governing board to authorize the local attorney to go and commence condemnation actions. That is true if somebody has lived in a house for all their life and the city council puts them in the cross hairs; it is true for a church that has got a prime piece of property on the corner of a busy intersection that a developer wants to build a strip mall on; and it is true for someone who has run a small business in a prime area of town and has made a lot of money but does not pay a lot of property taxes because they have a small shop, and they can be put out of business even for a competition that wants to have a larger and, thus, more tax-yielding facility on that piece of property.

Everything I have said is wrong, and everything I have said can be done with the use of Federal economic development funds under the Kelo decision. What we need to do now is pass this bill to right this wrong.

And I would just remind the membership, Mr. Chairman, that the author of the majority opinion in Kelo, Justice John Paul Stevens, recently spoke to a local bar association in Nevada and said that if he was a legislator rather than a justice of the United States Supreme Court, he would have ruled the other way. So if Justice Stevens were sitting here as a representative in Congress today, he would be supporting this bill, too, and I think that is the reason why this bill should receive overwhelming support. We all should vote for it.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I submit the following jurisdictional letters of exchange for inclusion in the Congressional Record during floor consideration of H.R. 4128, the ``Private Property Rights Protection Act.''

House of Representatives,

Committee on Energy and Commerce,

Washington, DC, November 2, 2005.

Hon. F. James Sensenbrenner, Jr.,

Chairman, Committee on the Judiciary, House of

Representatives, Rayburn House Office Building,

Washington, DC.

Dear Chairman Sensenbrenner: I understand that you will

shortly bring H.R. 4128, as amended, the Private Property

Rights Protection Act of 2005, to the House floor. This

legislation contains provisions that fall within the

jurisdiction of the Committee on Energy and Commerce.

I recognize your desire to bring this legislation before

the House in an expeditious manner. Accordingly, I will not

exercise my Committee's right to a referral. By agreeing to

waive its consideration of the bill, however, the Energy and

Commerce Committee does not waive its jurisdiction over H.R.

4128. In addition, the Energy and Commerce Committee reserves

its right to seek conferees on any provisions of the bill

that are within its jurisdiction during any House-Senate

conference that may be convened on this or similar

legislation. I ask for your commitment to support any request

by the Energy and Commerce Committee for conferees on H.R.

4128 or similar legislation.

I request that you include this letter in the Congressional

Record during consideration of H.R. 4128. Thank you for your

attention to these matters.

Sincerely,

Joe Barton,

Chairman.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, the manager's amendment simply makes clear that private roads and those that are open to the public, free or by toll, and flood control facilities are covered under the exceptions of the bill. It also includes a savings clause making clear that nothing in the legislation shall be construed to affect the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, which requires the Federal Government to pay the displacement costs of those adversely affected by the Federal Government's use of eminent domain.

The manager's amendment also incorporates into the bill's sense of congress section some language provided by the Resources Committee regarding the effect of the abuse of eminent domain on irrigation and reclamation projects and on public lands.

I urge my colleagues to support the improvements made by this manager's amendment.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman this is a gutting amendment. It is a gutting amendment because it removes the constitutional hook that this Congress and the Federal Government have to prevent the abuses that have been sanctioned by Kelo, and that is the Federal funds that have been used for economic development.

The amendment strikes out all the penalty in the bill that would prevent the government officials from abusing eminent domain. No penalty, no tap on the wrist. We say you should not do it; but if you go ahead and do it, then you are not going to be penalized. Without these penalties in the bill, the government could take private property from one person and simply give it to a wealthy corporation. Because this amendment guts the entire bill, it ought to be opposed.

Under this legislation, there is a clear connection between the Federal funds that would be denied and the abuse that Congress is intending to prevent. The policy is that States and localities that abuse their eminent domain power by using economic development as a rationale for a taking should not be trusted with Federal economic development funds that could contribute to similarly abusive land grabs.

There is an entirely appropriate connection in the base bill between the Federal policy of protecting private property rights from eminent domain abuse and making sure that the Federal Government does not subsidize eminent domain abusers. The amendment should be defeated for these reasons.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 1 minute to the gentlewoman from California (Ms. Waters).

Mr. Chairman, I yield myself the balance of the time.

Mr. Chairman, we do not know if the gentleman from New York's approach is constitutional. That has not been tried before, and it would be a case of first impression in the courts.

We know that the provision of denying Federal funds in the base bill is constitutional, because it was done by this Congress 20 years ago where we denied States transportation funds that did not raise the drinking age to 21. So the constitutional precedent was set 20 years ago in the transportation area. The base bill does that. The gentleman's amendment does not. That is why it ought to be rejected.

Mr. Chairman, I demand a recorded vote.

Mr. Chairman, I will claim the time in opposition, even though I am not opposed.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment would help property owners by putting the burden of proof on the government to show that it is not abusing eminent domain by taking private property for a private use. It is a good amendment, and I support it.

I yield to the gentlewoman from California.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, unlike the characterization that my friend from Virginia has made in this bill, this is a bill that is supported by the mainstream of Members of Congress. And how many times in anybody's congressional career would you see Jim Sensenbrenner and Maxine Waters supporting the same bill? That means that we have a very, very big tent of people who are supporting it, because it is the right thing to do.

The amendment should be defeated because it would gut the bill. Because it completely goes back to the definition of public purpose that the Supreme Court allowed this terrible miscarriage of justice to occur in the Kelo case.

The Kelo decision held that the term public use could actually mean a private use such that the government can take perfectly fine property from one person just to give it to another wealthier person. And the amendment would put back into the bill an exception for any public use, I would submit, as defined by a majority vote of the city council, which in the wake of the Kelo decision means a private use as well.

This amendment would put property owners everywhere back to where they were before the Kelo decision, and that is way behind the eight ball, subject to the mercy of a majority vote of their city council. The whole point of this legislation is to counter the Supreme Court's reading of public use in a way that includes private use as well, and the amendment guts the bill by allowing exceptions for private uses as well as public uses. Because this amendment is a giant step backwards in the protection of property rights, it should be soundly defeated.

With respect to the comments the gentleman made on the statute of limitations, yes, it is a long statute of limitations. Because the city has the time and the money to wait out the property owner simply by putting it on the shelf until the time expires. And we should have a longer statute of limitation, rather than a shorter one, so that the city cannot be tempted by the siren song of using its power and using its money to run roughshod over the owner of a piece of private property.

Mr. Chairman, I yield 1 minute to the gentlewoman from California (Ms. Waters).

Mr. Chairman, I yield the balance of my time to the gentleman from Virginia (Mr. Goodlatte).

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment must be defeated because it uses undefined terms that would gut this vital legislation designed to protect the property rights of all Americans from abuse of Government land grants.

The list of organizations that the gentleman from Ohio read off in support of his amendment shows why it ought to be defeated, if we want to stand up for the property rights of individual landowners.

The terms used in this amendment are broad in their scope; and, consequently, the amendment would subject just about any property owner in America to the threat of having their property taken by a government official willing to abuse the power of eminent domain to take property from one private citizen and give it to another wealthier developer.

The amendment would allow the taking profit for ``excessive land coverage,'' ``lack of ventilation,'' ``lack of light,'' and ``obsolescence,'' just to name a few. None of these terms are defined in the amendment, and each would be subject to tremendous abuse. No home in the country would be safe if a government official were allowed to use those concepts to take private property.

If a government bureaucrat thinks your porch is too big, they can take your whole house and all of your land under the amendment. If your barn has only one light bulb in it or no artificial light at all, then your barn and all of the farm land surrounding it could be confiscated by the government. Webster's Dictionary defines obsolete, which is one of the terms used in this amendment, as of a kind or style no longer current. Under the amendment, then, if the design of your house is out of fashion in the eyes of government officials, you could lose both your house and your property; and that is wrong.

The base bill already includes a reasonable exception that allows the government to take property when property is being used in a way that imposes an immediate threat to the public health and safety. And the base bill does absolutely nothing, absolutely nothing that prevents States and localities from enforcing public nuisance laws under its police powers and tearing down an unsafe building.

But the amendment goes much further in a way that threatens low- income and minority communities, and for that reason I join the NAACP in opposing this amendment. Listen to what actual practitioners in the field have to say about it. This is from the Institute for Justice, the public interest law firm that represented Suzette Kelo and the other New London homeowners who took their fight to keep their homes from being taken for private commercial development all the way to the Supreme Court.

The Institute for Justice states, ``In our experience litigating eminent domain cases all over the country, we have seen each of the terms in the amendment applied in such a way as to allow the use of eminent domain on perfectly normal residential and business neighborhoods. Dilapidation can mean that a building has chipped mortar or needs a new handrail. Obsolescence can be a single-family home that lacks three bedrooms, two full bathrooms and a two-car attached garage. Both overcrowding and lack of ventilation, light and sanitary facilities were routinely used during urban renewal to remove poor and minority communities from their neighborhoods. Deleterious land use can mean a combination of residences and businesses in a single area, even though many planners think that such neighborhoods are ideal. Time and time again, the terms found in this amendment have served as vehicles for the abuse of eminent domain for private commercial development''. From the Institute.

This gutting amendment should be defeated.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 2 minutes to the gentleman from Oregon (Mr. Blumenauer).

Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from Tennessee (Mr. Davis).

(Mr. DAVIS of Tennessee asked and was given permission to revise and extend his remarks.)

Mr. Chairman, I yield myself 5 minutes.

Mr. Chairman, I rise in very strong support of H.R. 4128.

I was one of those individuals who was shocked at the Supreme Court decision. On June 23, 2005, Kelo v. The City of New London, the Supreme Court held in a 5 to 4 decision that the city's use of eminent domain to implement its area's redevelopment plan aimed at invigorating a depressed economy was a public use satisfying the U.S. Constitution, even though the property would be turned over from private homeowners and businesses to private developers.

Never in my wildest imagination did I think there would be a Supreme Court ruling that would take private property and give it to private individuals for private use.

This decision was born out of what took place with the giant pharmaceutical company Pfizer. Pfizer built a plant next to an area called Fort Trumbull, and the city determined that someone else could make better use of the land than the people who actually lived there: the Fort Trumbull residents. The city handed over its power of eminent domain, that is, the ability to take private property for public use, to the New London Development Corporation, a private body; and that private body then exercised eminent domain to take the entire neighborhood for private development.

The Supreme Court decision is wrong, and I cannot see how any Member of the House of Representatives could support the taking of private property for private use. Someone spoke of this as being a pillar of democracy. It is a strong American value that we hold dear, and I do not think that we should not do something, exercise our power in this House to deny the Supreme Court decision to be used by all of these cities and redevelopment agencies and other entities. I believe that we have to protect the American people.

As a matter of fact, one Member came and said, well, you know, this is an isolated case. It is not. I have over 125 cases throughout the United States where cities and other entities, community redevelopment agencies, in those cities where they can give the eminent domain rights to private developers, such as they did in this Kelo decision, are taking people's private property.

What is more, many of these entities are trying to take private property, take homes and businesses to give over to the big-box developers who need a lot of land to put down these big-box shops.

I do not believe we can stand by and not do something. There are those who would argue that the Federal Government should not be involved. If not us, who will protect people? We know that you are getting lobbied, Members are getting lobbied by Members of city councils, even by mayors; but many of them are lying with these developers. They have relationships; money is changing hands. They are in bed with the very developers who want to take the private property for private development.

Again, we cannot afford to let this happen. What we do here today will help to slow down this taking of private property for private use. As far as I am concerned, the bill could have even been stronger because we have got a few exceptions in the bill that I question.

I wanted a pure bill with no exceptions. My chairman who worked so hard on this bill made a case for some takings for certain kinds of very, very important public use of private lands. And even though I am supporting the bill, I could support an even stronger bill because I think there should be no exceptions, none, zilch, zero, no exceptions. I do not believe in taking private property to give to someone else for private use to make money off of.

You will hear this described in any number of ways, the taking of private property to get rid of blight. Whose blight? By whose definition? The taking of private property by economic development. What kind of economic development? Who is going to make the money? Who is going to suffer?

Your home is your castle. And for those people who save their money and invest in their homes, raise their children, that home should be their castle in toto. That home should never be in jeopardy because some city government, some redevelopment agency decides that they want to take it. I do not care what for. The gentleman from Virginia (Mr. Scott) came and talked about the taking for ballparks. I disagree with that.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 2 minutes to the gentleman from Virginia (Mr. Moran).

Mr. Chairman, I yield 2 minutes to the gentleman from New York (Mr. Nadler).

Mr. Chairman, I yield 2 minutes to the gentleman from New Jersey (Mr. Pallone).

Mr. Chairman, I yield 1 minute to the gentleman from Ohio (Mr. Kucinich).

Mr. Chairman, I yield 1 minute to the gentlewoman from Texas (Ms. Jackson-Lee).

Mr. Chairman, I yield myself such time as I may consume.

Mr. Speaker, as you can see, this is not a Democrat-Republican issue. The people who care about property rights, the people who respect homeownership, the people who believe that this is an important value are standing up for the citizens of this country. Folks who believe that somehow the government has a right to take private property for private use are standing on the side of the developers.

While I respect Members on both sides of the aisle, I have had some Members on this side of the aisle talk about what they have done for poor people, and you will hear people talk about what they do for minorities, that they are doing this to get rid of blight, to create better communities. Well, on this one, I would like to say to all of my would-be friends who are helping poor communities and minority communities, we do not need you on this one.

We need you to respect the right of those minorities and those poor people to hold on to whatever it is they own, whether it is a little, small business or whether it is a two-room shack or a one-room shack or whatever it is. It is theirs. They have a right to it. And no one, no mayor, no city council member, no one has the right to think they know better; that they can take that property for a private use.

I think it is unconscionable for anybody that is elected by the people to

undermine the people by supporting the taking of private properties for private use. I would hope even those Members who have been past mayors, who have been past city council members who agreed with the developers, indeed listen to this debate here on the floor today and agree that if we want to do anything to support the right of citizens to own property, we will support this bill.

Mr. Chairman, I yield the balance of my time to the gentlewoman from Nevada (Ms. Berkley).

Mr. Chairman, I am not opposed to the amendment, and I ask unanimous consent to claim the time in opposition.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise in support of the amendment offered by the gentleman from Wisconsin.

This amendment does not change the bill in any substantive way. Rather, this amendment seeks to clarify some of the exceptions that provide for the use of eminent domain for those uses that have traditionally been considered for a public purpose.

This amendment also enhances the sense of congress provision and points out that the bill does nothing to restrict the Federal Government from fulfilling its obligation under current law when it exercises eminent domain.

Most importantly, this amendment serves to reflect the bipartisan interests of the various committees that have been at the forefront of this issue, Agriculture, Resources and Judiciary. I am pleased that we have been able to work together on what I feel is an appropriate response to the Kelo decision.

I just want to say to Chairman Sensenbrenner, you know how strongly I feel about this issue. And while I offered some amendments in committee so that there would be absolutely no exceptions, I think that if we are able to pass this bill today we will have taken a giant step to stop what I think is a wrongheaded decision by the Supreme Court. So I am willing to certainly support the chairman's amendment, and if we have to continue to work on this issue to get to where I want to be with no exceptions, then I will look forward to working with the gentleman in the future on it.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I respectfully offer this statement against the amendment offered by the gentleman from New York. Essentially, this amendment eliminates the teeth of this bill: the denial of Federal funds for 2 fiscal years to those States and cities that have violated this act. The denial of Federal economic development funds should serve as a real deterrent for those States and cities that want to exercise eminent domain for development, that is, the taking of private property for private use. Without this provision, this bill will not be taken seriously, and the eminent domain abuses that many in this country are complaining about will continue.

I just waved before my colleagues a list of over 125 cases of the taking of private land for private use, or attempts to do that; and I think the bill that we have before us today will stop this kind of abuse of eminent domain.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I support this amendment also. I am tired of poor people and working people having to go and find lawyers and pay them. Who can afford $250 and $300 an hour? The average poor person certainly cannot. So you are right, let us put it on the entity that is trying to pull these tricks in the first place to take these properties away from these citizens.

So I support the amendment.

Mr. Chairman, I respectfully offer this statement against the amendment offered by the gentleman from Virginia (Mr. Moran).

Mr. Chairman, this amendment seeks to prohibit a taking of private property only when the taking's primary purpose is economic development, maybe for the parking lots he described.

I am fearful that such an amendment would create a loophole for States and cities, allowing them to take property in a manner that is inconsistent with this Act, by arguing that the economic benefits of the taking were incidental rather than primary.

Also, this amendment seeks to confine property owners to a 7-year period in which they must bring a suit under this Act. This means that an owner who has had his or her property taken better hope that the State or the city puts the property to use in 7 years. If a State or city takes property for a public purpose, sits on it for 8 years and then puts it to use for economic development, the owner has no recourse.

Mr. Chairman, I do not think that you can argue that the statute of limitations is too long. These people, citizens buy their homes, and they expect to live in them for life. They do not expect someone to come along and say that we have decided that we are going to give it to someone else, a developer to develop for private purposes to make money on.

So I would ask my colleagues to reject this amendment.

Mr. Speaker, I thank my friend for yielding, and I will tell the gentleman that my title is just that of a humble servant to try and make sure that this institution works as well as possible in a bipartisan way.

Well, humble is the one I put there, and I am proud to have it there.

Mr. Speaker, let me say that the House will convene on Tuesday at 12:30 p.m. As you know, we are going to be proceeding today with the resolution on Rosa Parks, which is a very important item for us. But when we adjourn and complete our business today, we will adjourn to meet on Tuesday at 12:30 for morning hour and at 2 p.m. for legislative business. We will consider several measures under suspension of the rules. A final list of those measures to be considered under suspension will be sent to Members' offices by the end of today. Any votes called on those measures will be rolled until 6:30 p.m. on Tuesday.

For Wednesday and the balance of the week, the House will consider additional legislation under suspension of the rules, as well as H.R. 4128, the Private Property Rights Protection Act of 2005, which I just mentioned and asked for submission of amendments on that. We will be making a rule in order for that. We also anticipate that the House will consider additional appropriations conference reports as they become available.

Mr. Speaker, let me just say that obviously we are working very hard on the appropriations work. Chairman Lewis is moving through that agenda very well, and it is our hope that we will be able to complete work. But just as we found today we had the opportunity to consider the Agriculture appropriations conference report, we may, next Friday, have a conference report that would come forward.

Obviously, we will try to get our work completed as expeditiously as possible, and if we can complete it by Thursday, we would like to. But I do think that Members should look at the prospect of being here at least part of the day on Friday of next week, if we do have another conference report from the Appropriations Committee.

I thank my friend for yielding. And let me thank Mr. Conyers for outlining the schedule for the Nation to remember an extraordinary life.

I, of course, remember very well when we honored Rosa Parks here, and, having learned so many things about her that I frankly did not know just within the last few days, her level of political activism in the 1940s and the kinds of things that she had done, it is very appropriate, and I know the Speaker has done everything that he possibly can to ensure that we do recognize this great life and, of course, by having Rosa Parks' body lie in state here in the Capitol. I think that is a great testament to an extraordinary life.

As we look at our legislative schedule, Mr. Speaker, let me say that we have the very important goal of dealing with legislation that is emerging from the committee chaired by Mr. Sensenbrenner, and Mr. Conyers is the ranking minority member. And that legislation which I mentioned earlier, dealing with the issue of eminent

domain, is a high priority. So I can assure my friends on both sides of the aisle that we will do everything that we possibly can in looking at the exigencies of the schedule as it relates to Mrs. Parks' funeral in Detroit to accommodate Members when it comes to management of the bill on the floor and votes themselves as they take place. So we will do all that we can to address as well as we possibly can those very understandable issues.

I will just say, Mr. Speaker, that we obviously, in looking at the chance the Members will clearly have here in the Capitol to recognize the extraordinary life, we are going to have this resolution on the floor, but we still do want to do whatever we can, and the Speaker is committed to that, to address the concern of her funeral taking place on Wednesday. I thank again the gentleman from Michigan for his thoughtful remarks.

If the gentleman will further yield, I will just say at this juncture that we are going, again as the gentleman from Maryland has just said, this is obviously in somewhat of a state of flux, but we are going to do everything that we possibly can to accommodate the concerns of those Members who are hoping to attend the funeral of Mrs. Parks.

I thank my friend for yielding.

I cannot tell you exactly when next week they will be considered, because obviously, we anticipate their filing. I can tell you that from my role on the Rules Committee, that we often wait for appropriations conference reports to be filed, and we do not know exactly when they will be considered. But I will tell you the bills that we do anticipate are, of course, the energy and water appropriations bill and the foreign operations appropriations bill. And we also anticipate next week having motions to go to conference on additional appropriations measures that would include the Science- State-Justice-Commerce bill and the military quality of life bill.

So those are things that we do anticipate, although I cannot say exactly at what point next week they will be considered.

I do not at this juncture know exactly where we stand on that.

Mr. Speaker, let me say that obviously we are continuing to work on our quest to put into place for the first time since 1977 an amendment to the budget which would call for substantial reductions in spending, particularly in the mandatory area and possibly in other areas.

We are continuing to work on that, and we would like to do it, but while we are not absolutely certain that that vote, an amendment to the budget, would take place, we are, as the gentleman correctly said, continuing to work on the reconciliation process.

Now, it is my understanding that we have had eight committees that have already reported out their measures, and we are going to continue to do everything that we possibly can to ensure that we bring about a kind of fiscal responsibility that the budget resolution calls for, and as the gentleman said correctly, Mr. Speaker, exceed that if we possibly can. Because trying to rein in the reach of the Federal Government is a high property for us, and we are working, we hope in a bipartisan way, because I know my colleagues on the other side of the aisle are regularly talking about the problems of deficit spending and all, and we share that concern. We hope that as we proceed with this reconciliation process that we can move a package that will get here to the floor to do the work.

So whether or not we have a vote that amends the budget resolution, we are focused on the reconciliation process itself.

To the gentleman's last question on the tax aspect of reconciliation, that continues to be an item that we are working on. I know that the gentleman from California (Mr. Thomas) of the Committee on Ways and Means and the gentleman from New York (Mr. Rangel) are working on that, the ranking member. We at this juncture do not know exactly what shape that will take, but it is something that we do anticipate completing.

Mr. Speaker, I will say that any time is a good time to talk about fiscal responsibility whether we are engaged in a colloquy or at any point. I am happy to do that right now. I will state that the reason that no Republican in 1993 cast that vote was that it was the largest tax increase in history. And if the gentleman will recall, we within a very short period of time repealed large parts of that tax increase that was put in place in 1993, in 1995, 1996, and 1997 and we did so with the support of President Clinton and a number of Democrats here.

We can continue to debate what took place in the early 1990s. As far as an amendment to the budget resolution that was passed, 1977 is the last time that we actually passed an amendment to the budget resolution which did bring about, called for these kinds of cuts, and we may or may not consider that. But whether we consider it or not, we will be doing everything that we can to work in a bipartisan way to ensure that we proceed with this reconciliation process and bring about the

kind of fiscal responsibility that I believe Democrats and Republicans alike have talked about.

If the gentleman would yield, that was a $98.5 billion tax increase in 1982. I remember it very, very well.

If the gentleman would yield.

I will close the debate by quoting Thomas Jefferson, the author of our great Declaration of Independence.

Thomas Jefferson said, ``Two thinking men can be given the exact same set of facts and draw different conclusions.''

Obviously, that is something that rages on as we debate these issues and we look forward to continuing that. I thank my friend for yielding.

I know, Mr. Speaker, that the gentleman controls the time.

Mr. Speaker, let me say that, obviously, border security and immigration reform continue to be very high priorities for this majority, and I believe there is bipartisan concern about the issue of our national security, and border security is part of that. Immigration reform is something that I believe we need to address. We are going to continue to do everything that we possibly can to ensure that we address the issue of immigration reform before we adjourn this session of Congress.

I thank my friend for yielding.

Mr. Speaker, I would hope that we could do it before Thanksgiving, before we adjourn on the 18th of November; but my hope is that we will be able to complete work on immigration reform and border security before we adjourn the first session of this Congress.

Mr. Chairman, I thank the gentleman for yielding.

Mr. Chairman, I rise to oppose the legislation, which is the congressional response to the Supreme Court decision Kelo v. City of New London. By enacting this legislation, we are undermining the States' rights and assuming the role of a city council. We should not change Federal law every time Members of Congress disagree with the judgment of a locality when it uses eminent domain for the purpose of economic development. We were elected to the United States Congress, not to local city councils.

Mr. Chairman, it is impossible for Congress to draw a bright line principle separating those cases in which economic development is appropriate for a particular area and when it is not. The Constitution does require that the taking be for public use. It is the role of a city council to weigh the needs of a particular community and consider when the government should use eminent domain.

Sometimes that might mean taking property for the purpose of economic development. Sometimes it may not. Sometimes we will agree with the judgment of the locality. Sometimes we will disagree.

I cannot think of a more fitting example of the quagmire this bill presents than the situation we have right here in Washington, D.C., where they are trying to build a baseball stadium. I find it ironic that, at the same time we are marking up the bill, Washington, D.C. is using eminent domain to build a baseball stadium.

The debate on this bill has already exposed the shortcomings of the legislation. For example, we found that if a stadium were built and owned by the city at taxpayer expense, it would clearly be allowed under the bill. On the other hand, if the owner offered to build a stadium at his own expense, that might not be allowed.

The bill requires public access to the stadium as ``a matter of right.'' Does that mean that the skyboxes must be put to public auction, or can the owner pick and choose which businesses can acquire rights to skyboxes?

Anybody who surveys baseball or football stadiums around the country will find all kinds of public and private and joint public-private ownership combinations. Could some use eminent domain, while others be prohibited from using eminent domain based on the fact that they want to limit access to skyboxes or how the title of the stadium is held?

Mr. Chairman, the World Trade Center and Lincoln Center in New York, the Baltimore Inner Harbor, even President Bush's baseball stadium in Houston, Texas, were all made possible by eminent domain takings for the purpose of economic development. And although we might agree or disagree with the wisdom of these projects, most would agree that they should not have been illegal. These are political decisions that ought to be left to the localities within the confines of their State legislature's parameters.

If Congress cannot leave eminent domain to the States, then we should focus on the real issues involved in eminent domain. We should require, for example, that just compensation should include replacement cost, not just technical appraisal value. We should require that relocation expenses be paid to owners and tenants.

As written, the bill does nothing to ensure that displaced individuals receive reasonable compensation for the replacement value and relocation expenses. The bill does nothing to ensure compensation for loss of goodwill of a business, nothing to ensure that due consideration is given for the length of time a family or business has been at a particular location. Nothing in the bill deals with the fact that the poor and minorities are usually the victims of eminent domain abuses. Let us put some protections in the bill so that those who are relatively weak politically can be protected from unfair use of eminent domain.

Mr. Chairman, I would like to place in the Record at this point letters from the National League of Cities, the National Conference of State Legislatures and the National Association of Housing and Redevelopment Officials.

Mr. Chairman, I believe that the decision-making power of eminent domain should remain at the State and local level and that congressional attempts to define when eminent domain is reasonable and when it is not will cause more problems than they solve. Therefore, I urge my colleagues to oppose the bill.

National League of Cities,

Washington, DC, October 27, 2005.

Hon. James Sensenbrenner,

Chair, House Judiciary Committee, Rayburn House Office

Building, Washington, DC.

Hon. John Conyers, Jr.,

Ranking Member, House Judiciary Committee, Rayburn House

Office Building, Washington, DC.

Dear Chairman Sensenbrenner and Ranking Member Conyers: The

National League of Cities (NLC) strongly opposes H.R. 4128,

the Private Property Rights Protection Act of 2005. NLC is

the country's largest and oldest organization serving

municipal government, with nearly 1,600 direct member cities

and 49 state municipal leagues, which collectively represent

more than 18,000 United States communities.

NLC acknowledges the spirit underlying this bill and does

not condone abuse of eminent domain power that violates state

law. However, NLC believes this bill, or any anti-eminent

domain bill pending in Congress, is unnecessary at this time

because of the ongoing actions of state legislatures and the

absence of direct evidence confirming that alleged abuses of

eminent domain authority

are of a national scope and scale that demand immediate

federal action.

Despite fearful rhetoric in the press, the Supreme Court's

decision in Kelo v. City of New London did not expand the use

or powers of eminent domain. The Kelo decision confirmed that

eminent domain, a power derived from state law, is not a one-

size-fits-all power. The Court declared that this power is

one best left to the states and their political subdivisions.

The Kelo Court, affirming federalism, did not preclude ``any

state from placing further restrictions on its exercise of

the Takings power.'' Approximately 30 states are already

reviewing or planning to review their eminent domain laws

during upcoming legislative sessions, with the majority

focused on just compensation and comprehensive planning

process modifications. Since June 2005, Alabama, Texas, and

Delaware enacted laws that tighten the application of eminent

domain power in each state.

NLC urges Congress to let state governments act on their

own eminent domain laws and not move forward with federal

legislation.

Many aspects of H.R. 4128, led by the proposed definition

at Section 8 of ``economic development,'' trouble NLC.

Economic development is a process, not the concrete act of

taking private property from A and giving it to B for a

``commercial enterprise carried on for profit.'' If enacted,

the bill could have the unintended consequence of preventing

hurricane-damaged communities from rebuilding. In those

communities, eminent domain may be necessary to assemble land

and help with negotiations associated with comprehensive

redevelopment plans. Implementing those comprehensive

redevelopment plans would ``increase tax revenue, tax base,

employment, or general economic health,'' violating the

bill's further definition of economic development.

Moreover, the bill at Section 2(b) grants final authority

to the appointed--not elected--judiciary to determine what

constitutes ``economic development.'' Curiously, this was an

important argument against the Kelo decision raised by

property rights activists.

The practical effects from this bill, including its loose

definition at Section 8 of ``Federal economic development

funds'' and its creation of a private right of action at

Section 4 that invites forum shopping, would not chill, but

rather freeze the process of economic development across the

country.

Eminent domain is a powerful tool for local governments--

its prudent use, when exercised in the sunshine of public

scrutiny, helps achieve a greater public good that benefits

the entire community.

Again, NLC opposes H.R. 4128 for the reasons stated in this

letter. Please weigh carefully the unintended consequences

from a rush to pass federal legislation in response to

unsubstantiated fears over the Supreme Court's decision in

Kelo v. City of New London.

Sincerely,

Donald J. Borut

Executive Director.