Private Property Rights Protection Act of 2017
Floor Speech
Mr. Speaker, I claim the time in opposition to H.R. 1689, the Private Property Rights Protection Act of 2017.
While I believe this bill is well intentioned, it is the wrong approach to a serious problem. It seeks to prevent abuse of eminent domain power, but its provisions could cripple the finances of State and local governments without even providing a remedy to the victims of an unjust taking.
In Kelo v. City of New London, the Supreme Court upheld the right of a municipality to use eminent domain authority to take private property and to transfer it to another private entity for a public purpose. Building on a century of precedent defining public use to include a public purpose, the Court held such a transfer did not violate the Fifth Amendment's Takings Clause, which provides that no person's private property shall be taken for public use without just compensation.
Critics of the Kelo decision believe that the Court overreached and that eminent domain should be exercised only when the taken property will be owned by the government or by a private entity operating as a public utility.
H.R. 1689 would overturn Kelo by prohibiting any State or local government that receives Federal economic development funds from using eminent domain to transfer private property to another private entity for the purpose of economic development.
The bill broadly defines economic development funds to include any Federal funds distributed to States or localities under laws designed to improve or increase their economies. Should a State or local government violate this prohibition, it is subject to the loss of all such funds for 2 years.
This draconian remedy could potentially devastate the finances of State and local governments. Even projects unrelated to takings could lose funding, and cities could face bankruptcy simply by incorrectly guessing whether a given project would sufficiently qualify as being for a public use. The potential loss of such funding would also have a chilling effect on a government's willingness to use eminent domain to promote legitimate economic development projects.
Even if a government never takes a prohibited action, it would likely be adversely impacted by this bill. Just the potential loss of significant Federal funding may make it impossible for a government to sell municipal bonds or could require a government to pay inordinate interest rates given the possibility that it might, at some point in the future, use eminent domain improperly and thereby lose all Federal economic aid and, with it, the ability to repay the bonds.
The power of eminent domain is an extraordinary one and it should be used with great care. Historically, there are examples of States and localities abusing eminent domain for purely private gain or to favor one community at the expense of another. When used inappropriately, this power has wrecked communities for projects, resulting in little economic benefit.
When used appropriately, however, eminent domain is an important tool, making possible transportation networks, irrigation projects, and other important public works that support communities and are integral to their economic and social well-being.
Unfortunately, this bill's vague definitions may prohibit projects that have a genuine public purpose while allowing others that historically have abused eminent domain.
For example, this bill allows use of eminent domain to give property to a private party ``such as a common carrier that makes the property available for use by the general public as of right.'' That would seem to include a stadium, which is privately owned and available for use by the general public as of right.
On the other hand, communities could be barred from using eminent domain to pursue affordable housing projects if they are built using a public-private partnership, such as the HOPE VI program, which uses Federal money to encourage private development of mixed-income housing.
Yet another shortcoming of the bill is that it does not actually help an aggrieved property owner or tenant because it would not allow them to sue to stop the allegedly prohibited taking. The bill only authorizes suit after a condemnation proceeding has concluded, when it is too late.
In addition, injured persons would not be entitled to any damages other than the just compensation they got at the time of the taking. All they could get is the psychic satisfaction they may receive from bankrupting their community after the fact.
I would also point out that this bill is unnecessary, since more than 40 States have already moved aggressively to narrow their eminent domain laws in the 13 years since Kelo was decided.
Finally, H.R. 1689 undermines federalism, and it may raise constitutional concerns. Subject to the Takings Clause, local land use decisions are generally left to the judgments of State and local governments, which are in the best position to weigh local conditions and competing interests. This is the essence of federalism, and Congress should not be in the business of sitting as a national zoning board.
Also, the loss of all economic funding, even for projects that may have nothing to do with takings, is so draconian that it may amount to an unconstitutional coercion of State and local governments.
Accordingly, I oppose this bill, and I would simply make two comments to amplify on what I said.
If you want to stop improper takings, all right, but have a proper remedy. Allow the alleged victim of the improper taking to go to court, sue for an injunction to stop the improper taking, and get monetary damages, if any. That would be at least a reasonable remedy.
Instead, this bill says that you can't go to court to get an injunction; you can't get damages. All you can do is wait until after the improper taking has occurred--you already lost your property--then you can go to court; and if the court finds you are right, that it was an improper use of the eminent domain procedure, then the government will lose economic aid for 2 years. It doesn't help the plaintiff. It doesn't help the property owner. All it does is bankrupt the community. So what is the point?
Second, as I mentioned before, this could injure communities that never do an improper taking because, if I am the mayor, I may not be able to float a bond lest somebody think that maybe my successor once or twice removed may, 20 years down the line or 10 years down the line, do an improper taking. And then the Federal Government would come in, stop all economic aid, and we wouldn't be able to repay the bonds.
So this would impair the ability of States or local governments to bond for projects. It wouldn't help the victim--there may even be no victim--but it would hurt the government. It makes no sense. This is a real problem.
Mr. Speaker, I urge my colleagues to vote ``no,'' and I reserve the balance of my time.
Mr. Speaker, I first comment, the gentleman from Wisconsin says that we object that the penalty is too severe. We do not object that the penalty is too severe. We object that the penalty is irrelevant, that the penalty won't help the plaintiff. It won't help to prevent the misuse, number one. And number two, it could be a plot that would have the practical effect, when there is no misuse, no taking at all, of having a deleterious effect on the community's bond rating, even when there is no taking.
If you are going to do this bill and you want to narrow the definition of a public purpose, which is the purpose of the bill, I am not sure we can do that, given the fact that the Supreme Court has decided what it is. Assuming we could do that, fine, but have an appropriate remedy, a remedy that would enable the plaintiffs to get an injunction against the taking, that would give them monetary damages, which is the way we normally do things, not a remedy that will not prevent the taking and only will damage a community, whether or not it does any improper takings. That doesn't make sense.
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Mr. NADLER. Will the gentleman yield?
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Mr. NADLER. Mr. Speaker, I agree with the gentleman. The standard way in which someone can vindicate rights is to sue. If the local government wants to abuse the rights of a homeowner, let's say, by an improper taking, the proper way for us to help is to give them the right to sue and to get injunctive relief. Let them go into Federal court and get an injunction which says: Do not tear down the building. Do not take away title. You can't do it because this is too broad a use of taking. It is a violation of the Fifth Amendment.
This bill won't actually help that person because it gives them no rights except the right after they have lost the property. It gives them the right to go to court and not get any relief for themselves, not get the property back, not get any monetary damages, not get an injunction. It gives them the right to go into court and seek to block financial aid to the community. So they can say, ``I took revenge on the community,'' but what is the point? It doesn't help them.
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Mr. NADLER. I think there are such decisions, and this would seem to violate them.
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Mr. NADLER. Yes. The Medicaid decision said you cannot draft the local government to exercise a function for the Federal Government, which this would seem to do also.
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Mr. NADLER. That is exactly what it said.
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Mr. NADLER. I agree with the gentleman. I think the gentleman from Maryland makes a very valid point.
Mr. Speaker, for all these reasons, I oppose this bill. I would simply say: We agree there is a serious problem with abuse of eminent domain, and we agree there may very well be decent legislation that would do something about the problem.
If you are going to do it, draft legislation that really deals with the problem, that is constitutional, that will protect the small person such as Mrs. Kelo but that won't bankrupt the community in a way that is probably unconstitutional anyway.
This bill is not the solution. We could, on a bipartisan basis, work for an intelligent solution, but this is not it. Accordingly, I urge a ``no'' vote.
Mr. Speaker, I urge the defeat of this legislation, and I yield back the balance of my time.
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