Protection of Homes, Small Businesses, and Private Property Act of 2005

Protection of Homes, Small Businesses, and Private Property Act of 2005 - Declares that the power of eminent domain shall be available only for public use, which shall not be construed to include economic development. Applies such limitation to all exercises of eminent domain by the federal government or by state and local governments through the use of federal funds.

[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1313 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                S. 1313

To protect homes, small businesses, and other private property rights, 
                by limiting the power of eminent domain.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 27, 2005

  Mr. Cornyn introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To protect homes, small businesses, and other private property rights, 
                by limiting the power of eminent domain.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Protection of Homes, Small 
Businesses, and Private Property Act of 2005''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) The protection of homes, small businesses, and other 
        private property rights against government seizures and other 
        unreasonable government interference is a fundamental principle 
        and core commitment of our Nation's Founders.
            (2) As Thomas Jefferson wrote on April 6, 1816, the 
        protection of such rights is ``the first principle of 
        association, the guarantee to every one of a free exercise of 
        his industry, and the fruits acquired by it''.
            (3) The Fifth Amendment of the United States Constitution 
        specifically provides that ``private property'' shall not ``be 
        taken for public use without just compensation''.
            (4) The Fifth Amendment thus provides an essential 
        guarantee of liberty against the abuse of the power of eminent 
        domain, by permitting government to seize private property only 
        ``for public use''.
            (5) On June 23, 2005, the United States Supreme Court 
        issued its decision in Kelo v. City of New London, No. 04-108.
            (6) As the Court acknowledged, ``it has long been accepted 
        that the sovereign may not take the property of A for the sole 
        purpose of transferring it to another private party B'', and 
        that under the Fifth Amendment, the power of eminent domain may 
        be used only ``for public use''.
            (7) The Court nevertheless held, by a 5-4 vote, that 
        government may seize the home, small business, or other private 
        property of one owner, and transfer that same property to 
        another private owner, simply by concluding that such a 
        transfer would benefit the community through increased economic 
        development.
            (8) The Court's decision in Kelo is alarming because, as 
        Justice O'Connor accurately noted in her dissenting opinion, 
        joined by the Chief Justice and Justices Scalia and Thomas, the 
        Court has ``effectively . . . delete[d] the words `for public 
        use' from the Takings Clause of the Fifth Amendment'' and 
        thereby ``refus[ed] to enforce properly the Federal 
        Constitution''.
            (9) Under the Court's decision in Kelo, Justice O'Connor 
        warns, ``[t]he specter of condemnation hangs over all property. 
        Nothing is to prevent the State from replacing any Motel 6 with 
        a Ritz-Carlton, any home with a shopping mall, or any farm with 
        a factory''.
            (10) Justice O'Connor further warns that, under the Court's 
        decision in Kelo, ``[a]ny property may now be taken for the 
        benefit of another private party'', and ``the fallout from this 
        decision will not be random. The beneficiaries are likely to be 
        those citizens with disproportionate influence and power in the 
        political process, including large corporations and development 
        firms. As for the victims, the government now has license to 
        transfer property from those with fewer resources to those with 
        more. The Founders cannot have intended this perverse result''.
            (11) As an amicus brief filed by the National Association 
        for the Advancement of Colored People, AARP, and other 
        organizations noted, ``[a]bsent a true public use requirement 
        the takings power will be employed more frequently. The takings 
        that result will disproportionately affect and harm the 
        economically disadvantaged and, in particular, racial and 
        ethnic minorities and the elderly''.
            (12) It is appropriate for Congress to take action, 
        consistent with its limited powers under the Constitution, to 
        restore the vital protections of the Fifth Amendment and to 
        protect homes, small businesses, and other private property 
        rights against unreasonable government use of the power of 
        eminent domain.
            (13) It would also be appropriate for States to take action 
        to voluntarily limit their own power of eminent domain. As the 
        Court in Kelo noted, ``nothing in our opinion precludes any 
        State from placing further restrictions on its exercise of the 
        takings power''.

SEC. 3. PROTECTION OF HOMES, SMALL BUSINESSES, AND OTHER PRIVATE 
              PROPERTY RIGHTS.

    (a) In General.--The power of eminent domain shall be available 
only for public use.
    (b) Public Use.--In this Act, the term ``public use'' shall not be 
construed to include economic development.
    (c) Application.--This Act shall apply to--
            (1) all exercises of eminent domain power by the Federal 
        Government; and
            (2) all exercises of eminent domain power by State and 
        local government through the use of Federal funds.
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