Congress Moves to Protect Property Owners

Published January 1, 2006

The U.S. House of Representatives on November 3 overwhelmingly voted to use the power of the purse to dissuade state and local governments from using eminent domain power to take private property for the purpose of economic development.

Purse Strings Pulled

In a 376-38 vote, the House voted to prohibit state and local governments from using eminent domain to take private property for economic development during any fiscal year in which they have received federal economic development funds. Additionally, under provisions of the bill (H.R. 4128), the Private Property Rights Protection Act, any state or local government that uses eminent domain for such purposes may not receive federal economic development funds for the following two years.

The bill gives any private citizen whose property was taken for economic development the right to seek relief in federal court, which is currently not an option given the Kelo decision by the U.S. Supreme Court. In addition, the bill places the burden of proof in such court actions on the government entity to show by clear and convincing evidence the taking is not for economic development purposes.

The bill states economic development is not a valid reason to take private property. Tangential economic benefit is not prohibited if there is a separate, independent, and valid primary motive.

Bipartisan Landslide

In a show of strong bipartisan support, 157 Democrats joined 218 Republicans and one Independent in voting for the bill. A roll call of the vote can be viewed at

“Do you really want to tell voters you support this ridiculous Supreme Court notion [that] the government can take property against their will and give it to someone richer who will pay more taxes?” asked Rep. Louie Gohmert (R-TX), according to the November 4 Greenwire.

“We can justify our state or cities taking when it is for a road or a school or a public utility,” explained bill supporter Rep. John Conyers (D-MI) in the November 4 Greenwire. “But we can’t agree for takings when it’s done for private uses like condominiums or shopping malls.”

Most Connecticut Reps Agree

Notably, although the town of New London, Connecticut was the victorious defendant in the Supreme Court decision that caused the grassroots uproar against eminent domain abuse, four of the five Connecticut representatives supported the property rights protection measure. Democrat Rosa DeLauro joined Republicans Christopher Shays, Nancy Johnson, and Rob Simmons in support of the bill. Only Democrat John Larson, after publicly remaining on the fence until the hour of the vote, voted against the bill.

“There must be a clear line between condemning property that is harmful to the public and claiming private land for economic purposes, which is why I support efforts to prevent the federal government from using eminent domain solely for economic development,” explained DeLauro, according to the November 2 issue of Newsday.

“The Kelo decision set a terrible and far-reaching precedent by allowing government to take our property for private, commercial uses,” Johnson told Newsday.

Development Plan Fizzles

Ironically, as the House voted to curb eminent domain abuse, the deal between the City of New London and a private company to develop Suzette Kelo’s land was falling apart. Unable to reach agreement over the particulars of the proposed course of development, the deal appeared dead, and Kelo and her neighbors may have gained a reprieve.

The irony of the reprieve was not lost on Institute for Justice Senior Attorney Scott Bullock.

“This is par for the course of projects that rely on eminent domain abuse,” Bullock said. “They tend to be poorly thought out, heavily subsidized, and reliant on suspect central planning.

“One of the saddest things regarding the Kelos and other citizens whose property is subjected to eminent domain is the arrogance of the officials that conceive and execute the takings,” Bullock added. “Typically, they have so much land available for their projects, yet they still insist on callously taking property that people have centered their lives around. Eminent domain should be a last resort for essential public projects, not a first resort for private developers.”

James Hoare ([email protected]) is managing attorney at the Syracuse, New York office of McGivney, Kluger & Gannon.

For more information …

The full text of H.R. 4128, the Private Property Protection Act, as approved by the House of Representatives and submitted to the Senate, is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to, click on the PolicyBot™ button, and search for document #18155.