Private Property Rights Implementation Act of 2006

Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 1054 and ask for its immediate consideration.

Mr. Speaker, for the purpose of debate only, I yield the customary 30 minutes to the gentlewoman from New York (Ms. Slaughter), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for the purpose of debate only.

Mr. Speaker, the rule before us today will provide for consideration of three measures of vital importance to our Nation: The conference report for Fiscal Year 2007 Homeland Security Appropriations bill, the Private Property Rights Implementation Act of 2006 and the Military Commissions Act of 2006. This rule will enable the House to consider these bills and complete this important work on behalf of the American people.

Mr. Speaker, I rise today in strong support of this rule and the underlying legislation. These three bills address some of our Nation's most pressing priorities. First, the Homeland Security Appropriations Conference Report funds our most important Federal programs aimed at securing the Nation against terrorist attacks. It provides $34.8 billion for the operations and activities of the Department of Homeland Security in fiscal year 2007, an increase of $2.3 billion over fiscal year 2006 and $2.7 billion above the President's request.

The conference agreement aggressively addresses our most critical homeland security needs, including border and immigration security; nuclear detection; port, cargo and container security; transportation security; natural disaster preparedness and response; and support to State and local first responders.

This legislation secures our homeland first and foremost by protecting our borders and revitalizing immigration enforcement, because border security is homeland security. It provides over $21 billion for border protection, immigration enforcement and related activities. It includes an increase of $2.1 billion over funding in 2006. This includes $5.2 billion for the Secure Border Initiative and additional funding to support technology, personnel and infrastructure to prevent terrorists and other criminals from exploiting our borders and immigration system.

Among other security-enhancing measures, this funding includes $2.77 billion for Border Patrol, adding 1,500 new Border Patrol agents, for a total of 14,800. It includes $1.2 billion for border fencing, vehicle barriers, technology and infrastructure; $4.2 billion for immigration and customs enforcement; $1.38 billion for Immigration and Custody Enforcement custody operations, adding 6,700 detention beds, for a total of 27,500; and $28.2 million to assist State and local efforts to enforce immigration laws.

This conference report also recognizes the need to enhance port, container and cargo security by providing the funds necessary to secure our ports and inbound cargo in order to prevent terrorists and criminals from exploiting the international commerce system.

It supports our first responders by paying attention to the needs of high-threat areas, firefighters and emergency management. It supports ongoing efforts to enhance the current inventory of our Nation's critical infrastructures, develop secure communication systems with Federal, State and local entities, and it continues to work with the private sector to implement protective measures around the Nation's infrastructure.

This agreement continues ongoing efforts to enhance security for all modes of transportation, including ports, rails and aviation with a focus on developing and installing next-generation technology to inspect cargo, baggage and passengers. And it supports traditional missions, such as drug interdiction, law enforcement, maritime safety and Presidential protection.

Finally, this conference report provides for the necessary and appropriate oversight of the Department of Homeland Security. It fences off $1.6 billion from being spent until DHS meets certain planning and management requirements. Under these requirements, DHS must develop a comprehensive strategy and plan for port, cargo, container security, and for the Secure Border Initiative. Department of Homeland Security must also provide expenditure plans for the border security system, U.S.-VISIT, Federal Protective Service, business transformation for CIS, explosive detection systems in airports, Customs information technology systems, and overall better financial data throughout the department, and in particular, science and technology.

Finally, the agreement directs the preparedness Directorate and FEMA to improve its capacities in communications, training and other capacity assessments, including management logistics, emergency housing, debris removal and victim registration.

Second, this rule provides for consideration of the Military Commissions Act of 2006 as modified by the other body. The House version of this legislation passed the House on Wednesday by a vote of 253-168 and was sent to the other body. Today's legislation again provides congressional authorization for military commissions to try alien unlawful enemy combatants for war crimes committed before, on or after 9/11/2001. It amends the War Crimes Act to criminalize grave breaches of Common Article 3 of the Geneva Conventions, while fully satisfying U.S. treaty obligations. It also authorizes the establishment of military commissions to try alien unlawful enemy combatants, which is the legal term used to define international terrorists and those who aid and support them, for war crimes. While this new chapter is based upon the Code of Military Justice, it also creates an entirely new structure for these trials.

These commissions will only be used to try alien terrorists for war crimes. Any U.S. citizen will be tried within the Federal United States judiciary. These alien terrorists acquitted of a war crime will still be detained as enemy combatants according to the principle in international law that there exists an undisputable right to keep the enemy from returning to the battlefield. Thus, an acquittal at a war crime trial will not result in terrorists being released. This legislation also provides for an independent certified military judge to preside over all proceedings.

This agreement creates the process necessary to prosecute terrorists effectively and fairly, while also protecting American troops and intelligence agents fighting the global war on terror.

I would like to thank Chairman Duncan Hunter and Chairman Sensenbrenner for all of their hard work in reaching an agreement with the other body that keeps Americans safe while observing the rule of law.

Third, this rule provides for the consideration of legislation to give private property owners the ability to litigate cases in Federal court when local and State regulations deprive owners the use of their own land.

Although this legislation already passed the House this week with the support of the majority of its Members, it did not achieve the support of the super majority needed to pass under the suspension of the rules.

So, today, the House will once again have the opportunity to support this commonsense bill to ensure that property owners have the same access to Federal courts as other plaintiffs claiming a violation of their constitutional rights.

It removes the judicial detour of forcing claimants raising solely Federal claims to first pursue their litigation in State court on the very same case and dramatically reduces the amount of time that property owners must spend in negotiation and litigation before takings claims that can be heard on their merits.

I congratulate the gentleman from Ohio (Mr. Chabot) for all of his hard work in constructing and perfecting this legislation, and I look forward to supporting his efforts on the floor later this afternoon.

Mr. Speaker, I am proud of this work product that the majority has brought to the floor today. I encourage all of my colleagues to support this rule and the underlying legislation that will keep Americans safer, uphold the rule of law and protect the private property rights of citizens. I encourage each of my colleagues to join me in supporting this rule and the three underlying bills.

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

Mr. Speaker, during the last few years, Members of Congress have spoken very plainly and openly to this administration about our thoughts and ideas and hopes and dreams, about how we can better protect not only this country and our borders but the rule of law, and this administration has been very open to hearing from Members of Congress about these thoughts and concerns.

Our next speaker is a gentleman who has engaged the administration, has talked about how important border initiatives are, to make sure that not only are we secure on our border but to make sure that we deal effectively and carefully with people who have come to this country, to make sure that they are safe, to make sure that they are not harmed in that process. If they have broken the law, they will take the full measure of law as it is given, but that we do so in a compassionate way.

Our next speaker is the chairman of the Rules Committee, the gentleman from California (Mr. Dreier), and I yield to him such time as he may consume.

(Mr. DREIER asked and was given permission to revise and extend his remarks.)

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

Mr. Speaker, in the month of August, I had an opportunity with several other Members to go to Laredo, Texas, to visit our border to see the border operations and to see the things that were happening there. I had a chance to run across Texas Army National Guard personnel who were attempting to not only work but work successfully with Border Patrol and other Customs and Immigration enforcement personnel.

I wanted to draw attention to how important our National Guard has been from each of our States in protecting our borders, working on border security and doing those things that are necessary. This came as a result of a plan that happened with input from Congress, that happened through the great work that was done not only with the President but also with local Governors and people who are interested in doing this.

I had a chance to go with the Honorable Jo Bonner from Alabama down to Laredo. And both he and I together had a chance to see firsthand how the Army National Guard worked with Border Patrol. We went out that night to see firsthand their needs.

Mr. Speaker, that is what is in this bill, the ability that we have to protect our border, to provide the necessary resources, to make sure that our men and women who are with official law enforcement and also those who are with the Guard are able to make sure that this country is protected.

That is what is in this bill. I am proud of it. I am going to ask for everyone's vote for not only the rule but also the underlying legislation.

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

Mr. Speaker, here we are talking about the rule for Homeland Security, and yesterday, the Rules Committee had an opportunity to speak very plainly with the appropriators who were responsible for this Homeland Security appropriations bill. We spoke with them about several matters. One of them was about the air marine operation under the CBP, Customs and Border Protection.

I would like for my colleagues to know, who have joined me and others in the effort to talk about the air interdiction program that we have about drugs that come into this country, that this bill provides $600 million for their border and air space protection.

Secondly, we had an opportunity to talk about the fugitive operation teams that nationwide are gathered together under Customs and Border Protection to make sure that the apprehension of those people who are illegal aliens that are in our country here who are fugitives and who are dangerous are picked up and dealt with by our judicial system in this country.

Over and over and over, the things that we have talked about that were necessary and needed throughout the years are contained with funding in this bill. I am very happy to say that I am proud of what this administration has done by listening to us, and perhaps more importantly, our appropriators, like Hal Rogers who brought this bill, who listened and who have done something about it.

Mr. Speaker, I yield 5 minutes to the gentleman from Georgia (Mr. Gingrey).

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

Our previous speaker has just hit on probably one of the most important aspects of freedom in America, and that is the right of a person to be able to own property, the ability that we have to have our house to be our castle. Yet as we talk about the issue, I would like to add my dimension to it.

The bottom line is that we are engaged in this on behalf of people who own property, people who own property who have grown weary of having local government take their property without due compensation for the benefit of local government, and we are going to protect the private property owner. We believe private property rights are very important, and that is why we are getting engaged, because we have seen local communities do for their own best interest those things that they wanted to do by taking private property from a person.

We believe it is a simple part of what the Constitution is about. We believe that private property rights are important. I do understand the argument, and it is related to a person who cannot fight government even in their own local community when that is what government wants to do.

We are going to give a level playing field to those individuals because we believe that the individualist who owns his own property should have equal rights also, not just to be taken advantage of by local communities.

Mr. Speaker, that is also in this rule. We support the underlying legislation.

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

Mr. Speaker, I want to thank the gentleman for bringing this up as an issue, because I think, once again, it shows clearly the differences between our parties and the way we think about this.

It is true that the Republican Party would be accused of having a balanced approach not only to making sure that these chemical companies have taken care of their responsibility for security but making sure also that we protect the jobs that come with those and the security of the towns in which they are located in.

We heard the gentleman use words like stronger, tougher, harder and making it more difficult. Everything he talked about was to simply make it harder for these companies to operate in America. Tougher sanctions, more rules, more regulations and being tough on the chemical companies. Yes, we get it, run them out of town. Run them out of the country. Take the jobs and leave.

Mr. Speaker, we are not going to do that in this bill. We are going to bring a balance, a balance that says that these chemical companies are a natural asset to the United States of America. As a part of our ability not only to make sure that we can receive the things that we need, technology and these things which chemical companies provide, that make our lives better every day, we are not going to run them out of town and we are not going to run them out of the country.

They have a responsibility to make sure that their internal elements are safe and the controls they put in place are doing the right thing. They want to take care of their responsibilities, and we are going to make sure that that is balanced. So we are not going to allow the tougher sanctions, the tougher things that our friends on the other side of the aisle want to do. We are going to strike a balance, a balance for safety, a balance for comprehension that what we want is to make sure that they are good corporate citizens and that they look closely at where their own frailties exist.

That is why this bill is going to pass today, because we are not going to run them out of town. We are not going to speak from a position of weakness; we are going to speak from a position of strength. That is another one of the differences between the Republican Party. We are going to balance it out and do the right thing.

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

Mr. Speaker, I want to join my colleagues in thanking the

Honorable Martin Sabo for his service to this House and for his additions of the things he has brought forth in this legislation, not only working in a bipartisan basis but also his leadership on behalf of making sure that the next generation understands things like port security and other things which the gentleman has specialized in.

Mr. Speaker, I would also like to thank our Speaker, Dennis Hastert, and majority leader, John Boehner, for their vision and hard work to bring this bill forward today. They worked very closely with Chairman Hal Rogers and Chairman Jerry Lewis of the Appropriations Committee, Duncan Hunter of the Armed Services Committee, Chairman Jim Sensenbrenner of the Judiciary Committee, and certainly Steve Chabot of the Judiciary Committee.

This bill we bring forward today is a negotiated product, one where we have worked hard with not only members of the administration, but we have taken, as Members of Congress, trips to see our borders wherever they might be, the northern border or the southern border. We have our appropriators, who have taken time to understand the intricate details and the needs of this great Nation. We have engaged with the Department of Defense to talk about those things that will be necessary to protect our men and women on the battlefield. We have taken time to make sure that we have talked to our CIA, Central Intelligence Agency, about the way that they need to do business and those attributes about who they engage across the world and how we can treat fairly, yes, but treat properly those who would engage in killing Americans and bringing down reigning terror in our cities.

Mr. Speaker, I want to say that this underlying legislation is very important to America's learning lessons from the prior years and bringing those lessons to bear to protect this great Nation. We will speak from a position of strength, not fear. We will not worry about the things that we cannot get done but the things that we can get done. We will learn from our mistakes, and we will learn that, as terrorism in the 21st century evolves, we will, too. That is what these bills are all about.

I am proud of our country, and I say God bless America. Mr. Speaker, I ask for all the Members to support this bill.

Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution.

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

(Ms. SLAUGHTER asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I thank the gentleman from Texas for yielding me this time.

Mr. Speaker, these are not the circumstances under which we should be considering this legislation. The bills before us deal with nothing less than the security of our homeland and the fundamental nature of our Nation. Our citizens deserve better than to have their elected representatives rush to pass all of these bills in one day, bills that say a great deal about who we are as a society and where we are headed as a country.

The Homeland Security Appropriations Conference Report and the Military Commissions Act before us are manifestations of how this country has chosen to respond to the challenges that confront us, challenges to our safety and our peace of mind.

Will we respond with flawed acts that undermine our economic vitality and sacrifice the very liberties we are theoretically fighting to protect? Or will we be measured in our response and do what is necessary to preserve our liberty from both threats abroad and the consequences of fear and mistrust here at home?

Mr. Speaker, this homeland security legislation means a great deal to my constituents in western New York and to the tens of millions of Americans who live in northern border communities throughout our country.

Our relationship with Canada is truly a unique one. Ours is the longest unguarded border in the world, a demonstration of the spirit of trust and openness shared by our two great nations. That spirit has produced and sustained a thriving cross-border tourism industry and hundreds of billions of dollars in trade between our two countries every year.

Border economies on both sides of the divide depend on that trade and tourism. So it would be shortsighted and self-destructive to permit a flawed border security plan to cut off such a lifeline. Unfortunately, the Western Hemisphere Travel Initiative, put forth with so much fanfare by the Department of Homeland Security and the Department of State, threatens to do just that. In the name of heightened security, this plan, if implemented in its current form, will mean that millions of tourists from both countries will stay home and businesses will stop shipping their goods across the border. In its current form, this plan is a disaster waiting to happen. And considering that Canada is our largest trading partner, we have no choice but to fix it before it is too late. And what we need first is an extension of the WHTI implementation deadline, which I am relieved to see is still in this bill. Backing up the implementation until June or at least January of 2009 will give us the time we need to fix this program where it is broken.

My colleague and good friend from New York Representative McHugh and I have fashioned a bipartisan, commonsense bill that will correct the most egregious failings of WHTI and make it work for our constituents instead of against them. The Protecting American Commerce and Travel Act, or PACT Act, has gained the support of a wide range of Representatives in this body. It will ensure border security while at the same time keeping it open to travel and trade. I urge all of my colleagues to consider and pass the PACT Act in the months ahead. We don't have to choose between economic security and physical security. We can and we must have both.

Mr. Speaker, the Western Hemisphere Travel Initiative was a flawed reaction to a perceived threat and today threatens the liberty and prosperity of our country more than those it supposedly protects us from.

In the same way, the Military Commissions Act before us represents a shocking assault on the fundamental

freedoms and liberties that we have been told we are fighting to defend. This bill will dramatically increase the President's right to detain men and women the world over and to hold them indefinitely without charge. What is more, it will serve as a backdoor legalization of all but the most brutal of interrogation methods, taking our Nation down a path that we have chastised so many other countries for following.

Yesterday in the Senate, my friend and New York delegation colleague, Senator Hillary Clinton, told a story about our country's first great military leader, a man who went on to become our first great political leader.

On Christmas Day in 1776, in the midst of the Revolutionary War, General George Washington launched a daring raid that culminated in the capture of numerous Hessian soldiers. They were foreign mercenaries known for their brutality and who were fighting for the British. Despite what they had done to American soldiers, he ordered his men to treat them humanely. He said, ``Let them have not reason to complain of our copying the brutal example of the British Army.''

George Washington, the man who so influenced our national consciousness, who was so deeply responsible for who we are as a people, wanted the world to know that the new American Army did not abuse its prisoners of war. He also wanted to do whatever he could to win the hearts and minds of the Hessians. If even one came to see the virtue of America and lay down his arms, that would be a victory in the fight for our Nation's freedom and independence.

Mr. Speaker, I think we have heard some of the best arguments against this bill from General Washington's successors: the men and women who have held top positions of responsibility in our Armed Forces. They have told us over and over again that if we ignore our country's longstanding commitment to the rules of war and international treaties like the Geneva Conventions, we will be putting our own soldiers and our own Nation at risk. Opening the door to detainee abuse and indefinite detention will make our soldiers more likely to be tortured and dehumanized so that they fall into enemy hands, and that means our own country will be less safe.

A world based on the rule of law is more safe, not less safe, than a world based on power alone. To argue that those who oppose this detainee bill want to let terrorists roam free is both wrong and illogical. Suspected terrorists who have evidence against them will be convicted by courts of law. They will stay behind bars. At the same time, a steadfast commitment to due process will both defend our most cherished freedoms and free the innocent from unwarranted punishment. Doing so will protect our liberty and deprive our enemies of one of the main tools that they are using to recruit their new followers.

We will show the world that the United States practices what it preaches about freedom and democracy and human dignity. We will bring others over to our side and make them less likely to take up arms against us.

There is a reason why Colin Powell recently warned us that the world is beginning to doubt the moral basis of our fight on terrorism. He said it because it is true and because such a reality is a truly dangerous one. What is more, humane interrogation methods will prevent us from chasing after ghosts, from following the fleeting leads of false confessions born not from knowledge but from desperation.

General Washington saw the value of a world based on law and principle over 200 years ago, and he saw it at a time when his fledgling Nation was truly in a fight for its very survival. And for us to pass a bill today that abandons some of the most fundamental principles of the civilization that we have sworn to defend would be an insult to all those who came before us, to all those who fought and struggled so that we could live free.

Mr. Speaker, it is such a respect for law and eternal principles that this administration and far too many in this Republican leadership lack. The proof lies in a provision of this bill which has received so little notice it is shameful but that is profoundly revealing about its true nature.

Ten years ago Congress passed a law called the War Crimes Act. Under that bill violating the Geneva Conventions is a crime in the United States. The administration argued that the Convention does not apply to enemy combatants, a term of its own invention. But the Supreme Court disagreed. In other words, the administration officials who have spent the last 5 years creating and directing our torture policy, as well as the government employees who have carried it out, could be liable for criminal prosecution for violating the War Crimes Act.

And so they have decided in this bill to go back in time to 1997 and to rewrite the War Crimes Act to make their actions legal. And that is exactly what this bill does. To call this strategy cynical and self- serving, Mr. Speaker, is an understatement. When President Bush signs this bill, he will be signing away any responsibility for the potentially criminal policies that he and those in his administration have enacted during the past 5 years. When he signs this bill, he will be signing a pardon for himself and for all other architects of these disastrous, self-defeating, and immoral policies.

But we have a choice here today. We can take a principled stand on behalf of the principles that make us great. We can choose to reject a future in which America can no longer honestly claim that it respects human rights, a future in which our own shortsighted, selfish, and immoral retreat into fear and suspicion has left us less safe and more isolated than ever before. We can choose to embrace our true nature and, in so doing, take a great step toward the creation of a world led by law and free from fear.

It is our choice, Mr. Speaker. And I implore all of my friends in this body, please, let us today make the right one.

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

Mr. Speaker, I yield 6 minutes to the gentleman from Minnesota (Mr. Sabo).

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

Mr. Speaker, I yield 3\1/2\ minutes to the gentleman from Oregon (Mr. Blumenauer).

Mr. Speaker, I am pleased to yield 5\1/2\ minutes to the gentleman from Massachusetts (Mr. Markey).

Mr. Speaker, I will use my remaining time to close, but, first, I wish to insert for the Record an editorial from this morning's New York Times called, ``More Comfort for the Comfortable.'' That is the way they describe the Private Property Rights Implementation Act. They say it is a deeply misguided giveaway for big real estate developers.

[From the New York Times, Sept. 29, 2006.]

More Comfort for the Comfortable

Congress, which has done so little this session to address

the nation's real problems, is expected to vote today on a

deeply misguided giveaway for big real estate developers. The

bill would create new property rights that could in many

cases make it difficult, if not impossible, for local

governments to stop property owners from using their land in

socially destructive ways. It should be defeated.

The Private Property Implementation Act would make it

easier for developers challenging zoning decisions to bypass

state courts and go to federal court, even if there was not a

legitimate federal constitutional question. Zoning

regulations are quintessentially local decisions. This bill

would cast this tradition aside, and involve the federal

government in issues like building density and lot sizes.

The bill would also make it easier for developers to sue

when zoning decisions diminished the value of their property.

Most zoning does that. Developers would make more money if

they could cram more houses on small lots, build skyscrapers

200 stories tall, or develop on endangered wetlands. The bill

would help developers claim monetary compensation for run-of-

the-mill zoning decisions on matters like these. It would

also make it easier for them to intimidate local zoning

authorities by threatening to run to federal court.

Zoning is not an attack on property rights. It is an

important government function, and most Americans appreciate

that it helps keep their own neighborhoods from becoming more

crowded, polluted and dangerous. If more people knew the

details of this bill, there would be wide opposition. As it

is, attorneys general from more than 30 states, of both

parties, have joined the U.S. Conference of Mayors, the

National Conference of State Legislatures and leading

environmental groups in opposing it.

The bill does a lot of things its supporters claim to

abhor. House Republicans were elected on a commitment to

states' rights and local autonomy, and opposition to

excessive litigation and meddling federal judges. It is

remarkable how quickly they have pushed these principles

aside to come to the aid of big developers.

Mr. Speaker, I will be asking Members to vote ``no'' on the previous question. If the previous question is defeated, I will offer an amendment to the rule to instruct the enrolling clerk to strike from the conference report several last-minute provisions that may compromise chemical plant security.

Mr. Speaker, I ask unanimous consent that the text of the amendment be printed in the Record immediately before the vote on the previous question.

Mr. Speaker, these provisions were not in either the House or Senate-passed versions of the Homeland Security bill. They were drafted in secret and slipped into the conference report without the input of any Democrats in the conference. Even worse, these provisions may make chemical facilities more vulnerable to security problems and not less.

When we talk about balance, I think Homeland Security was supposed to be about rules and regulations. The new language weakens the Homeland Security Secretary's ability to enforce chemical facility site security plans. It takes the authority away. It allows the Secretary to preempt tougher State laws to ensure chemical facility security, and it severely restricts the rights of citizens to take any legal action to enforce chemical facility security requirements. Securing our chemical plants is far too important to be compromised by a secretive and inadequate security plan.

I want to stress that a ``no'' vote on the previous question will not stop consideration of the conference report, but a ``no'' vote will allow the House to remove these inadequate and dangerous provisions. Again, please vote ``no'' on the previous question.

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

Mr. Speaker, I object to the vote on the grounds that a quorum is not present and make the point of order that a quorum is not present.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I thank the gentleman for yielding.

I want to, first, thank the gentleman from Wisconsin for his leadership and his cosponsorship of this bill, also the 35 other cosponsors and the 234 Members of this body that voted for it. It passed just the other day by a margin of 60 votes. Now, it needed two- thirds, so that is the reason for our being here today. But there is really overwhelming support. I also want to thank the gentleman from Tennessee, Bart Gordon, for his leadership as well in support of this legislation.

Just to address a couple of the points that were made before I get into the bulk of my speech here, the gentleman from Michigan mentioned that this elevates property owners above all other constitutional rights and individuals who are trying to establish their constitutional rights. It doesn't do that at all. It puts them on the same level as other people who have a constitutional right that they are trying to enforce. And they should under existing law already have their constitutional rights. This is a fifth amendment right in the Bill of Rights. A person cannot have their property taken without just compensation, without due process of law, and this is just putting them on the same level with all the other constitutional rights that we enjoy in this country.

The gentleman from New York said that this is radical and dangerous. I would venture to say there aren't too many things that this side has tried to pass in the 12 years that I have served with the gentleman that the gentleman hasn't considered to be radical and dangerous, with some exceptions where we have been on the same side. But I think this is not radical nor is it dangerous.

I would be happy to yield to the gentleman from New York.

Reclaiming my time, Mr. Speaker, as I had indicated, there have been times when the gentleman has not said things we are doing are radical and dangerous, and I agree with that part of what we just talked about.

But the gentleman talks about this being only for big developers and not the little guy, so to speak. I would just note that H.R. 4772, this particular legislation, levels the playing field for small and middle- class property owners and retirees. The expense of bringing a Federal takings claim through the labyrinth of procedures in place today is disproportionately borne by private citizens who cannot draw on the public treasury to defend their rights. This bill, more than any big developer, helps small developers and the middle class, whose finances are particularly strained by the costs of defending their fifth amendment property rights.

This bill helps, for example, elderly retirees who may have all their savings tied up in their home that the government is trying to take away from them for whatever. When their home is unjustly taken by the government, the elderly should not have to spend 10 years paying for expensive lawyers to defend themselves in court. And that is what happens in communities all over this country right now. They should be allowed to go right to the Federal court and defend their federally protected property rights, and this bill would allow them to do just that.

On February 16 of this year, when I authored this, along with the gentleman from Tennessee (Mr. Gordon), this Private Property Rights Implementation Act, and I want to thank the gentleman, as I already did, we introduced this legislation as a result of recent Supreme Court decisions last term, Kelo and San Remo. They, quite frankly, ignored the constitutional rights of property owners.

The fifth amendment to the Constitution, as I stated before, states: No person shall be ``deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.'' And that is exactly what we are talking about remedying by this bill.

The House of Representatives acted to correct the Kelo decision by passing a bill, H.R. 4128, by a bipartisan vote of 376-38. Today, Congress has an opportunity to restore the rights taken away by the San Remo decision by passing this bill which will correct that decision.

Now, here is the problem. Strange as it sounds, under current law, property owners are now blocked from raising a Federal fifth amendment takings claim in Federal court. And here is why: The Supreme Court's 1985 decision in Williamson County v. Hamilton Bank requires property owners to pursue to the end all available remedies for just compensation in State court before the property owners can file suit in Federal court under the fifth amendment.

Then just last year, in the case of San Remo Hotel v. City and County of San Francisco, the Supreme Court held that once a property owner tries their case in State court, the property owner is prohibited from having their constitutional claim heard in Federal court, even though the property owner never wanted to be in State court with their Federal claim in the first place. The combination of these two rules means that those with Federal property rights claims are effectively shut out of the Federal court on their Federal takings claims, setting them unfairly apart from those asserting any other kind of Federal right, such as those asserting free speech or freedom of religion or other rights that could be established under the Constitution.

The late Chief Justice Rehnquist commented directly on this unfairness, observing in his concurring opinion in San Remo that ``the Williamson County decision all but guarantees that claimants will be unable to utilize the Federal courts to enforce the fifth amendment's just compensation guarantee.'' The Second Circuit Court of Appeals has also stated that ``it is both ironic and unfair if the very procedure that the Supreme Court requires property owners to follow before bringing a fifth amendment takings claim, a State court takings action, also precluded them from ever bringing a fifth amendment takings claim in Federal court.

H.R. 4772, the Private Property Rights Implementation Act, will correct the unfair legal bind that catches all property owners in what amounts to a catch-22. This bill, which is based on Congress's clear authority to define the jurisdiction of the Federal courts and the appellate jurisdiction of the United States Supreme Court, would allow property owners raising Federal takings claims to have their cases decided in Federal court without first pursuing a wasteful and unnecessary litigation detour, and possibly a dead end, in State court.

H.R. 4772 would also remove another artificial barrier blocking property owners' access to Federal court. The Supreme Court's Williamson County decision also requires that before a case can be brought for review in Federal court, property owners must first obtain a final decision from the State government on what is an acceptable use of their land. This has created an incentive for regulatory agencies to avoid making a final decision at all by stringing out the process and thereby forever denying a property owner access to the court. Studies of takings cases in the 1990s indicate that it took property owners nearly a decade of litigation, which most property owners, let us face it, especially a small property owner, can't afford, before takings claims were ready to be heard on the merits in any court, whether it is State or Federal.

To prevent that unjust result, this bill would clarify when a final decision has been achieved and when the case is ready for Federal court review. Under this bill, if a land use application is reviewed by the relevant agency and rejected, a waiver is requested and denied, and an administrative appeal is also rejected, so they have gone through this long process, then a property owner can bring their Federal constitutional claim, and, again, this is a Federal constitutional claim, in a Federal court. The bill would not change the way agencies resolve disputes; rather, H.R. 4772 simply makes clear the steps the property owner must take to make their case ready for court review.

This bill also clarifies the rights of property owners raising certain types of constitutional claims in other ways.

First, it would clarify that conditions that are imposed upon a property owner before they can receive a development permit must be proportional to

the impact a development might have on the surrounding community.

Second, it would clarify that if property units are individually taxed under State law, then the adverse economic impact the regulation has on a piece of property should be measured by determining how much value the regulation has taken away from the individual lot affected, not the development as a whole.

Third, the bill would clarify that due process violations involving property rights should be found when the government has been found to have acted in an arbitrary and capricious manner.

This legislation also applies these same clarifications to cases in which the Federal Government is taking the private property. This legislation is endorsed by a number of organizations: the National Association of Homebuilders; the National Association of Realtors; the U.S. Chamber of Commerce; the National Federation of Independent Businesses, which is oftentimes small businesses, most of the time; the United States Farm Bureau; and the Property Rights Alliance.

Again, this legislation passed. A majority of more than 60 votes for this legislation, as opposed to against it just a couple of days ago.

Again, I want to thank the gentleman from Wisconsin (Mr. Sensenbrenner) for his leadership and also the gentleman from Tennessee (Mr. Gordon) for his leadership.

It is your time.

Mr. Speaker, I thank the gentleman for yielding. We have the same zoning laws that are in many other places around the country. There is an appeals process that we go through, and there is a three- step process under this particular legislation: You have to be denied. You have to then appeal. You have to go a third level. And if you lose at all of those, then the owner has the option to go to either State court or Federal court under this legislation, which seems perfectly reasonable.

Of course there are. We have various zoning boards. We have various agencies. We have the same basic things in our community that most of the other communities have. And I was on the community commission. We have appeals of all kinds of nature at all times.

Mr. Speaker, I thank the gentleman for yielding.

Mr. Speaker, if the gentleman is bringing up statewide office holders in Ohio for credibility purposes, I think the gentleman should probably review the political situation in Ohio and some of the stature that some of those folks hold right now. If you are making an argument to support your side of the case, there are a number of them that are let's say not at the height of popularity as we speak here today.

But just to mention a couple of things that the gentleman touched upon, especially the environmental concerns, for example. There is nothing in this bill that would prohibit the protection of land for environmental, health and safety reasons.

However, if the land is so regulated as to deny the owner any use of it, then, yes, the owner needs to be paid just compensation. The fifth amendment does not have an exemption for environmental laws or any other laws. In fact, the best approach would be to purchase the land, possibly through eminent domain, rather than trying to pull a fast one and harm the property owner or take that person's property without just compensation.

The basic idea is that individual property owners should not bear all of the costs of protecting our communities. A few land owners should not have to sacrifice their own land and economic well being for the betterment of a town or a city; rather, the town should give them just compensation. That is what we are supposed to do in this society.

If we are taking it from a particular individual, and they cannot use their land as they want to see fit, the rest of us, through the appropriate way, should give them just compensation.

The fifth amendment should apply in all taking cases, and we should not be carving out exceptions when it comes to public health and safety, just like in the Kelo legislation we passed; we did not carve out exceptions for the private use of eminent domain because some property is not as desirable to the community at large. All property should be treated the same.

And if there is public health or environmental needs to take the land, owners should be compensated for its taking. There are limits to what the government can do. And that limit is called the Bill of Rights. When the government takes private property, owners must be fairly compensated for their land.

Mr. Speaker, I thank the gentleman for yielding. I just make two quick points.

The gentleman from Oregon disparages the reputation of the gentleman who testified at the committee, Mr. Trauth, who was an attorney, on the types of cases that he takes. I would just note that I oftentimes agree with people who come and testify, disagree. They are lawyers. They represent various sides.

I yield to the gentleman from Oregon.

Reclaiming my time, I happen to know that he also represents people that are at lower income levels that maybe are having their houses taken away by somebody. As all lawyers do, they represent a whole range of cases.

And the other gentleman from Washington talked about how awful this legislation the Republicans are trying to pass is. I would just note to the gentleman that there were 37 Democrats that voted for this legislation just the other day.

I thank the gentleman for yielding.

Mr. Speaker, will the gentleman yield?

I agree that this is not directly related to Kelo, although there is, I think in many people's minds, some connection, and I think rightfully so.

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

Mr. Speaker, the Constitution provides for just compensation where government takes property. On that there is general agreement. There is also agreement that the ability of government to take property must be strictly limited to a public purpose and that the power to take property must be used sparingly and judiciously. Those are not controversial points.

This bill is something different, something radically and dangerously different. This bill goes far outside the bounds of the Constitution to reward big developers and polluters whenever local government tries to preserve the quality of life in our communities by controlling the spread of huge landfills or sprawling subdivisions or factory farms or adult bookstores.

Under this bill, a developer could circumvent local government and normal State court consideration, drag our local governments into Federal court, and demand payment every time our constituents want to preserve their health or quality of life.

The threat of Federal court litigation, expensive Federal court litigation, is real and troubling. One representative of the National Association of Home Developers said this bill would be a ``hammer to the head'' of every local official. That is what this bill does.

It greatly expands the definition of a taking. It would require the government to provide compensation in cases where the Constitution does not. It would allow developers to game the system by arbitrarily dividing their lots to squeeze money out of communities.

Should we have to pay someone to keep them from poisoning our drinking water or ignoring our zoning laws or opening an adult bookstore? That seems to be the claim of developers who want to fill in wetlands at will or build garbage dumps the size of small towns. Is it a taking for which me must compensate the developer if we make them pay their fair share of the cost of the new roads, sewers, water lines and schools that will be needed to support their new subdivision?

Should local taxpayers have to pay a developer whenever any conditions are imposed on a developer before allowing him to move forward? That's what this bill does.

Let's have no doubt this is a big developers' bill. My friend, the sponsor of this bill, has trumpeted the fact that the bill is supported by the home builders, the realtors, the Chamber of Commerce, the National Federation of Independent Business, and the U.S. Farm Bureau.

It is opposed by environmental organizations, the American Planning Associations, consumer organizations, and your mayors, your Governors and your attorneys general of the States. Which side are you on?

One of the majority's witnesses at our hearing on this bill was Mr. Frank Kottschade, a major local developer who complained that he didn't get everything that he wanted from his local government.

Another was an attorney, Joseph Trauth, who represents Wal-Mart, Home Depot and GE in zoning cases. Small developers. He is proud of the fact that he helped the Rumpke landfill in Hamilton, Ohio, expand by 65 acres.

That is who the bill is for, not for homeowners who want to protect their homes and communities.

Let me clear up some confusion. Many Members of this House were outraged by the Supreme Court's Kelo decision which dealt with the use of eminent domain to take private property from one person and give it to another private party in order to promote economic development.

The distinguished chairman spoke of Kelo. This bill has nothing to do with Kelo and nothing to do with eminent domain. It is not about taking property. It is about regulating responsible use of property. It is about stopping the ability of local governments to pass zoning laws, environmental protection laws, to enforce them to protect the local residents against those who would pollute the environment, build every inch and fill our suburban towns with 200-story buildings.

You have heard Kelo discussed in this debate because the real purpose of this bill is simply indefensible. This bill has to do with zoning, environmental protection, and environmental regulation. This is about protecting homeowners from abuse by developers and polluters. The bill, actually, is about stopping the ability of local governments to protect homeowners from abuse by developers and polluters.

I would just note the irony that the Republican leadership the other day moved a bill that would limit the rights of religious minorities under the 1871 Civil Rights Act. This bill expands the rights of developers and polluters under the same 1871 Civil Rights Act and allows them to extort local communities. That is the Republican civil rights agenda.

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

Mr. Speaker, will the gentleman yield?

Mr. Speaker, I will concede that when we passed last week my bill to recognize Congress's support for a memorial at the World Trade Center site, after it had been held in committee for 2 years, that was not radical and dangerous.

Mr. Speaker, I yield 3 minutes to the distinguished gentleman from New York.

(Mr. BOEHLERT asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 5 minutes to the gentleman from Oregon (Mr. Blumenauer) who has been instrumental in local development, planning efforts in local government.

Mr. Speaker, I yield 45 seconds to the gentleman from Oregon (Mr. Blumenauer).

Mr. Speaker, I yield 1 minute to the gentleman from California (Mr. Farr).

Mr. Speaker, I yield 2 minutes to the gentleman from Washington (Mr. Inslee).

(Mr. INSLEE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, how much time is remaining?

Mr. Speaker, I yield 1 minute to the gentleman from Oregon (Mr. Blumenauer).

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

Mr. Speaker, it is important to get this debate back on track as to what we are talking about, not what we are not talking about, because the gentleman on the other side keeps bringing up matters that were not debated, that is not before us in this bill.

This bill has nothing to do with Kelo. It has nothing to do with whether there should be compensation for a taking. If the government wants to take your house for a new highway, they have got to pay you. That is the fifth amendment. If the government wants to take your house to give it to somebody else to build something that they judge for public purpose, the Supreme Court said they can do it in Kelo. A lot of people do not like it. That is the Kelo controversy. That is not this controversy.

This controversy has nothing to do with that. This controversy is saying the following: If local government passes regulations legislating land use, you cannot destroy a wetland; you cannot build a building more than 50 stories tall; you cannot build more than five houses on an acre, because it is a suburb and we do not want too much crowding; you cannot build a factory next to the houses; you cannot build a mine in a residential neighborhood. These are limitations on the use of property. It does not say you cannot use your property. It says you cannot build a mine here or you can only build 5 houses on that lot, not 2,500 houses.

Should these kinds of limiting regulations that governments all across our land grant all the time in order to protect local homeowners, in order to protect local property values, in order to protect the quality of life in local communities, should these laws remain possible? This bill says they should not remain possible.

This bill says that in two ways. One, we are going to drag the local community into Federal court where, contrary to the implications of the other side, it is a lot more expensive to litigate generally in Federal court than it is in a local court. So we are going to say that if the megadeveloper who wants to build 300 homes or 50 stories or 100 stories on that local lot next to your house, against the local zoning, he can take you right into Federal court, make you spend a lot of money and not go through the local process and not go through the local court process. That is very dangerous.

That is why the proponents of this bill, the home builders, said this is a hammer to the head of local officials. It is intended to be a hammer to the head of local officials. And who do the local officials represent? The local people who care about their property value, that is who they represent. But we are going to put a hammer to their heads because to hell with the property values of our local communities; to hell with the local planned development; we do not want big developers to be inhibited from building 300 houses on an acre instead of only three or four or whatever the local zoning code says.

Secondly, question: Is it a taking? The big developer buys 100 acres, has a 100-acre plot, two of them are a wetlands. The local government says or the law says you cannot build on the wetlands, you can only build on 98 of your 100 acres. The Supreme Court has always said you look at the totality of the property to determine whether that is a taking requiring compensation, and it is not, because you can build on 98 percent of your property, until this bill comes along and says no you cannot; you can subdivide the lots and if you want to protect that wetland, you have to pay for it.

The bill also says, in effect, that if you want to say that you cannot build 100 houses on that property, you can only build 10, you have to pay the developer for the difference between 10 houses and 100 houses, 90 percent.

Now, Mr. Chabot says, well, why should the government not pay the property owner if he cannot use his property. Well, the issue is not that. The issue is why should the local government, which wants to regulate or limit use of property in certain ways, have to pay the difference between what they say you can do with your property which they are not taking and everything conceivably you could do?

If the answer is yes, no local government will be able to pay that, no local community can pay that, and you cannot have local land use regulations, you will have to have the 50 story building there because no one can stay the difference between a 10-story limitation in the zoning instead of 50 on every lot.

So this is a question of whether you can have local language regulation, whether you can protect local communities at all.

Finally, let me say that this bill is clearly unconstitutional because this bill says you go right into Federal court. In the Williamson decision in 1985, the Supreme Court held that a takings claim, a claim that you are taking property without due process of law, is not right for Federal court review if the property owner had not obtained a final decision from the appellate administrative agency and the property owner had not first filed the claim in State court to challenge the government action. The court held that these requirements are constitutional requirements, not statutory. We cannot give them the right to go straight into Federal court because the rule, the court said, is compelled by the very nature of the inquiry required by the just compensation, that is, the takings clause, because the fact it is applied in deciding a takings claim simply cannot be evaluated until the administrative agency has arrived at a final decision regarding how it will apply the regulation it issued for the particular land in question.

Just 7 years ago, in 1999, the Supreme Court said again, a Federal court cannot entertain a takings claim under section 1983 or unless or until the complaining land owners are denied an adequate ``deprivation remedy,'' in other words has been denied State court review.

So by forcing the case right into Federal court this is clearly unconstitutional.

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

Mr. Speaker, just to clarify, this bill does not simply deal with sending cases to Federal courts. It deals with the substantive law to be considered there.

Mr. Speaker, I yield 30 seconds to the gentleman from Oregon (Mr. Blumenauer).

Mr. Speaker, I am pleased to yield 1\1/4\ minutes to the gentleman from Washington (Mr. Inslee).

(Mr. INSLEE asked and was given permission to revise and extend his remarks.)

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

Mr. Speaker, this bill deals with when a government exercises zoning power and the big developer disagrees with that, what happens. It says you go into Federal court right away, which is more expensive for the local government to defend, and which is unconstitutional, as I mentioned a few minutes ago, because you have to go through the State remedy.

But second of all, it changes the substantive law to enable the developer to say that any reduction in his use of the property, that says you cannot have more than X number of houses on the property or you cannot destroy all the wetlands on the property, anything that will help preserve the local communities, all the regulations it would depend on to preserve property values, to preserve local communities, they are all gone because you have to pay for them and no local government is going to pay for them.

So nobody is going to be able to go to their local zoning board and complain. They will have to go to the Supreme Court, which will not have time for them.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I think we all agree that the Constitution's protection of property rights must be preserved.

Let us be clear. This bill has nothing do with the Kelo decision, though they keep mentioning that. It has nothing to do with eminent domain procedures. Separate issue.

The Constitution provides for just compensation when Government takes property for a public purpose; and when it does it up front, that is eminent domain. On that much there is general agreement.

This bill is something different, something radically and dangerously different. It goes far outside the bounds of the Constitution to reward big developers and polluters whenever local government tries to preserve the quality of life in our communities by controlling the spread of huge landfills or sprawling subdivisions or factory farms or adult bookstores. It does it primarily by making a number of changes to the substance of law. I will not even talk about, I will allude to it, but I am not going to talk in detail about the forum shopping that this brings into Federal court.

By the substantive changes in the law, the bill attempts to accomplish a partial legislative override of the so-called property as a whole rule in takings litigation.

The bill states that taking claims shall be decided with reference to each subdivided lot regardless of ownership, ``if such lot is taxed or is otherwise treated and recognized as an individual property unit by State, territory or the District of Columbia.''

Regulations, local zoning regulations, wetlands regulations, commonly restrictive elements of some proportion of a property, while allowing development of other portions.

Under the well-established property as a whole rule, courts evaluating tax's claims, that is, evaluating a claim that some regulation is in fact a taking of private property without due process of law and therefore unconstitutional, must consider the impact of the regulation on the owner's entire property.

Courts routinely apply this rule in situations where the property has been subdivided to separate tax lots or otherwise legally subdivided on the grounds that this type of property subdivision is irrelevant to the taking's analysis.

This bill would override this established application of the property as a whole rule. For example, if a developer owned property subdivided into 100 lots, two of which were classified as wetlands, the bill would force taxpayers to pay the developer to prevent the development of those two lots, notwithstanding that he is able to build on 98 percent of the land.

The Constitution and our historic traditions have never guaranteed the ability to build on every square inch of property. This modification of the property as a whole rule would represent a substantial change in takings doctrine and would force taxpayers to pay someone for any reduction in the inability to use any inch of property under any zoning regulation.

So if you own a single family home in a suburb and you do not want to see every inch built right up to your lot line, have your Congressman vote for this bill, if you do want to see that, rather.

If you want to protect the ability of your town council to say we want zoning on half-acre lots, then you cannot support this bill. Because any town council that said you have to have at least a half acre or quarter acre or whatever is saying you cannot build on every inch and the public must pay for that.

The public will never pay for that. It is much too expensive, which means you cannot have any zoning regulations, you cannot have any limitation on density, and you cannot have any environmental regulations to prevent building on wetlands or other environmentally sensitive areas. That is what this bill does.

The bill also provides that in a case alleging a deprivation of substantive due process, the Government actions ``shall be judges to whether it is arbitrary, capricious and abuse of discretion or otherwise not in accordance with law.''

Prior to the New Deal, prior to 1937, in the so-called Lochner era, the due process clause provided the constitutional basis for a very activist Supreme Court decision striking down a wide variety of regulations: Minimum wage laws are unconstitutional, maximum hour laws are unconstitutional, factory safety laws are unconstitutional. Why? Because it was a violation of substantive due process.

This bill language seeks to revive this Lochner doctrine by promoting the revival of an expansive reading of the due process clause. Since the 1930s, the courts have applied the due process clause with considerable deference toward the elected branch of the government. Republicans talk all the time about activist courts, we do not want them, they say deference to the elected branch of the government, except here.

Reflecting this approach, Justice Samuel Alito, while sitting as a Judge of the Court of Appeals for the 3rd Circuit, rejected a due process challenge to a municipal ordinance on the basis that the Government action violates substantive due process only when it ``shocks the conscience.''

This bill would replace this relatively deferential, widely accepted standard with a wider standard focusing on whether the Government acted arbitrarily, capriciously or with an abuse of discretion.

In addition, the bill states the Government action should be judged based on whether it is otherwise not in accordance with law. This language would convert every single legal dispute over the application of garden variety zoning regulations, garden variety maximum hour, minimum wage, factory safety, environmental, whatever laws into a constitutional due process issue.

This bill goes so far to destroy the ability of communities to control the spread of huge landfills or of sprawling subdivisions or factory farms or adult bookstores. You want an adult bookstore on every block, and the town council cannot stop it, vote for this bill.

A developer can circumvent local government and normal State court consideration, drag our local governments into Federal Court and demand payment every time our constituents want to preserve their health or quality of life.

The threat of Federal court litigation is real and troubling. One representative of the National Association of Homebuilders said this bill would be a hammer to the head of every local official. Is that what we should be doing? Congress and the Federal Courts will now become a super national zoning board?

Whatever danger to the environment this legislation may pose, it is green in at least one respect. It is an outstanding example of recycling, taking us all back to those memorable days of Newt Gingrich's Contract on America, where even the Republican Congress rejected this kind of legislation in those days.

Later versions of that effort, which have been called kinder and gentler by at least one legal scholar, focused on procedural issues, a euphemism for the kind of forum shopping in this bill.

This bill is much less kind and less gentle. It greatly expands the definition of a taking. It would require the Government to provide compensation in the kinds of cases I spoke of a few minutes ago where the Constitution does not require compensation. It would allow developers to game the system by dividing their lots to squeeze money out of our communities.

Should we have to pay someone off to keep them from poisoning our drinking water? Should we have to pay people off if we want to control suburban sprawl? Is it a taking if we make them pay for some or all of the costs of the new roads, sewer lines, water lines and schools that will be needed when they are done? This bill says ``yes''.

Should local taxpayers have to pay a developer whenever any conditions are imposed on a developer before allowing them to move forward? This bill says ``yes''.

My Republican colleagues on the Judiciary Committee often rail against ``trail lawyers'' who engage in forum shopping. Now this bill, proposed by those same Members, would write forum shopping into the law to benefit one large group against everybody else: large real estate developers against every member of local government and every local constituent who cares about their community.

Let us have no doubt that this is a big developers' bill.

One of the majority's witnesses at the hearing we had on this bill last year was Frank Kottschade, a major local developer. Another was an attorney who made an impassioned plea for small property owners. But it turned out that the bio from his firm's Web site said that he represented such small property owners as Wal-Mart, the Rumpke landfill in a major expansion effort, Home Depot and General Electric. That is who this bill is for.

And let me clear up some confusion. Many Members of this House were outraged by the Supreme Court's Kelo decision, which dealt with the use of eminent domain to promote economic development. This bill, I will repeat, has nothing to do with Kelo, nothing to do with eminent domain. This bill has to do with destroying the ability of our local communities to enforce the zoning regulations, environmental protection, environmental regulation and any kind of limitation on any kind of development.

If that is what you want to do, if you want the Federal Government to come in and be the master of zoning and overrule all local regulations so that local government may as well go out of business, because Congress knows best, and in fact not even Congress, the courts know best, then vote for this bill.

Mr. Speaker, I thank the gentleman for yielding.

Mr. Speaker, first of all, we are told that this is a terrible situation because under current law, given Supreme Court decisions, you have to go to State court; you cannot adjudicate your Federal constitutional rights in Federal court. You can always appeal

any final court State decision. If you claim that the Supreme Court of Tennessee has violated your Federal constitutional rights, you can always appeal that into the Federal courts. So no one is disputing that. So that is a bogus claim.

Secondly, of course, the bill does not say directly that the local government must pay anybody who is denied any opportunity to do anything; but it has that effect because, for example, the law does not carve out an exception from the fifth amendment. The fifth amendment applies to everything, but the courts have long held that if you have a 100-acre plot of land and 2 acres, let us say, are wetlands that you cannot develop and you can develop 98 of 100 acres, if you look at the property as a whole and there is no taking there.

What this bill says is if they say 2 acres are wetlands and you cannot build on it or after half an acre or 35 square feet, the local government must pay for that; and for that matter if the local government says that you can only build on half acre lots, you cannot fill up every inch, then you are not using every inch of your land, you are prevented, and that is a taking of property.

Basic law always has been understood that as long as you can substantially use your land, not every inch of it, not to the extent, that is not a taking.

This says it is a taking. So if New York City zoning says the you can only build 75 stories, you cannot build 300 stories, under this bill, the local government would have to pay for the value of the 225 stories that you cannot build. This is way beyond takings law, and that destroys all local regulations. That is why this bill should be defeated.