tv Hearing Focuses on Kelo v. City of New London Decision CSPAN April 12, 2017 6:56pm-8:04pm EDT
believe and i think that's a good thing. >> hard work and fair chance for everybody to reach the top will turn out to be not an equal result, but equal chance for everybody. >> sunday night at 8:00 eastern on cspan's q&a. >> the house judiciary subcommittee on the constitution and civil justice recently had a hearing on imminent domain. they considered which property rights are protected by the constitution and when state and local governments are allowed to take privately owned land for public benefit.
the subcommittee on the constitution and civil justice will come to order. without objection, the chair's authorized to declare recess of the committee at any time. we welcome -- we welcome mr. cohen and we welcome everyone today to today's hearing on hr 1689, private property rights protection act. i now recognize myself for an opening statement. on june 23rd, the supreme court in a 5-4 decision in kilo v. city of new london held that i quote economic development, closed quote can be a use. in doing so, the supreme court allowed the government to take perfectly fine property rights from one small homeowner and give it to a large corporation for a private business facility. as it dissent in that case pointed out, under the
majority's opinion, any property may now be taken for the benefit of another private party. 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. the public reaction to the kilo decision was swift and strong. according to "wall street journal" and the nbc news poll by an 11-1 margin, americans said they opposed the taking of private property for public uses. and according to an american survey poll conducted at the time, public support for limiting the power of eminent domain is robust and cuts across demographic and partisan groups. justice o'connor in a subsequent speech called the kilo decision scary. even justice john paul stevens who wrote the kilo decision for the five-justice majority subsequently told the clark county nevada bar association that if he were a legislature instead of a judge he would have opposed the results of his own rule by working to change
current law. well, we've taken some of that advice. well that's exactly what the private property rights protection act will do. this legislation has a long bipartisan history. on october 25th, '05, then judiciary chairman, along with ranking member mr. connors first introduced the private property protection act which would deny states or localities that abuse eminent domain all federal economic development funds for a period of two years. this bill was reported out of the house judiciary committee on october 27th by a vote of 27 to 3. the vote went on to pass the house with 365 votes. it subsequently passed the house by a simple voice vote. the naacp and the aarp have said the takings that result from the supreme court's decision will
disproportionately affect and harm the economically disadvantage and in particular racial and ethnic minorities and the elderly. representatives of religious organizations have stated that houses of worship and other religious institutions are by their very nature nonprofit and all most universally tax exempt. these fundamental characteristics of religious institutions render their property singularly vulnerable to being taken by the supreme court. and the american farm bureau has stated farmers and ranchers own and lease significant amounts of land on which they depend for their livelihoods and upon champion all americans rely pore food and basic necessities. as valuable as the land is to our members and to the rest of the country, however, it will often be the case that more intense development by other private individuals or entities for other private purposes would yield greater tax revenue to the local government, closed quote. that's the american farm bureau.
congress's power to condition the use of federal funds extends to prohibiting states and localities for receiving any economic development funds for a specified period of time if such entities abuse their power of eminent domain. even if only state and local funds are used in that abuse of power. such a broader penalty is an appropriate use of congress's spending power as the supreme court has made clear that congress may attach conditions to the receipt of any federal funds provided such conditions are related to the, quote, federal interest in particular and national projects or programs. closed quote. under this legislation, there's a clear connection between the federal funds that would be denied and the abuse congress is intending to prevent. the policy is that states or localities that abuse their eminent domain power by using economic development as a
rational for taking, could contribute to similarly abusive land grabs. this legislation also includes an express private right of action to make certain that those suffering injuries from a violation of the bill will be allowed access to state or federal court to enforce its provisions. i look forward to hearing from all the witnesses today and to continuing the bipartisan tradition here in the house of representatives, maybe even restarting it here today. and for protecting private property rights. i would point out as i remarked earlier i recall clear lit debate we had on the floor of the house of representatives in 2005, june 30th when we had a resolution rejecting and resolution of disapproval of the supreme court's decision. and i went down to the front row and prepared myself to rebut mr. barney frank of massachusetts because that happened often, and i took my notes on all he said and realized that mr. frank and i completely agreed on this
property rights kilo decision. i also point out that the properties in question in new london, connecticut, are grown up to weeds, they haven't been developed and the people that were displaced were abused by this decision and by their local government and the very vitality of america's free enterprise economy is rooted in property rights and without them, capital can't make wise investments and we actually don't own our homes if it can be the design of someone with more money and more political influence that could move eminent domain against our private property. so i'm very much in support of this legislation that's before us here today. i look forward to the witnesses but i would yield to the ranking member for his opening statement. >> thank you, mr. chair. this is not one of those black and white issues like should we have healthcare for everybody or not. should we extend voting rights to everybody or not. those things that are easily understood and part of the
american way. this is a difficult decision. in the 113th congress, i voted against a bill that will was substantially identical to this bill and i understand the nuances, but i still remain opposed to the bill. i voted against that bill after i thought about it for a long time and considered the arguments, and they're good arguments on both sides for the use of eminent domain for economic development and about the need for congress to appropriately intervene when necessary. and there were -- it was a tough call, as i say, not like healthcare which is obvious that everybody should have healthcare and we should all have voting rights and women should have choice and things like that. but, i was sympathetic to those who opposed the supreme court's decision in kilo. in that case the court upheld a constitutional -- as constitutional the decision of that city to take private property and give it to another private party as part of an economic development plan. i understand and appreciated the fact that the power of eminent domain has been abused by some
localities for sure and often times low income and minority communities for wholesale destruction. and i think at the time the naacp was in favor of this bill because of that reason but i think they switched their decision but that had an influence on me too. and those local governments that weren't doing as good a job as they were were able to do so because such communities were politically marginalized and they weren't in the position to take the property for economic purposes. as was mentioned sometimes it's small houses they couldn't compete with the powerful developers. and that's unfortunate, normally i'm on the side of the weak and the poor and what you do relates to these. however, i concluded that economic development can help everyone and that those people who are in the worst economic shape and had difficulty sometimes getting together their strength to fight at the city council sill level may be the ones that benefit the most from economic development.
because not to agree with our 45 am president who said, you know, how much worse can it get, we've seen how much worse it could get. it's gotten a lot worse with the proposals that are made were are the budget he's proposed. but the minority communities are very down in terms of economic opportunity and they do need the jobs. they need the economic development that these projects are intended to provide. so, there merit in letting states and localities have eminent domain abilities. it's sometimes extremely essential. my city of memphis is not among the cities that are doing the best economically. we are in the lower ranks of growth economic growth, jobs growth, and we've got a lot of areas we're not -- so sometimes eminent domain can be helpful in creating economic vitality and that creates jobs and often
times in the inner cities which are important to keep as a core because that's where people come together rather than running away to flight to the suburbs. so it's an important issue that helps minorities maybe more so than it hurts them. and indeed using eminent domain can help the less powerful communities marginalized, so to speak, because that's where the problems are disproportionate. just to the use of eminent domain is a good or bad idea was appropriate for the court in key lee to leave that decision to states and localities interestingly enough. i think states and localities should make zoning decisions and local economic decisions. that should be a local decision. as should medical malpractice and that should be a state decision and i should write to kerry guns but that's a wholcra
different area of law. this is the state position to understand local conditions and local needs, which is why land use issues have been left to them. sometimes the one size fits all washington answer is not the right answer we want to leave things to local folks. in criticizing the kilo issue many people blur two issues. whether or not use being eminent domain is a good idea on its merits on the one hand or the other hand where the courts elect the legislature at the federal state or local levels should make that decision as to the first question. the courts decision in kilo did not come out of thin air. it wasn't a case they just kind of first impression. it relied on decades of precedent to hold that a state or city could use eminent domain for public purposes of economic redevelopment. court also made clear states are free to take new laws to limit or refuse the use of eminent domain. to give rights to property
orders. some 44 states have done in response to the kilo decision. and that's what the states have done who know what their communities needs might be. rather than short circuiting the state level response we ought to continue to let it develop. there are constitutional issues, here, mr. king took a proactive position and said why he thinks it's constitutional. the supreme court has made clear there are constitutional limits to congress's power to condition the use of federal funds by states. congress may not threaten states with the loss of federal funds to the degree where it coerces a state into carrying out federal policy. it conditions the use of vaguely defined federal funds on state's willingness to use the eminent domain and threatens to take away those funds for two years if the state doesn't comply. such total loss of funding may amount to coercion of the states by the federal government. as a practical matter it could bankrupt many struggling
municipalities, and something i find very unacceptable. but these and other reasons or what say close call but a call i find is important to leave it to states and local government, the decision and decisions that might help the economic and depressed more than those that need it greatly. i find the bill unnecessary and problematic and therefore i continue to have concerns and oppose the bill. i yield back. >> gentlemen, we'll now recognize the ranking member of the full committee mr. connors of michigan for his opening statement. mr. connors. >> thank you, mr. chairman. my colleagues, this is an interesting question, and my first observation is that most states are already taking action and here comes -- here comes the feds marching in to determine what they ought to do or can do.
i'm concerned about the provision in the bill denying federal economic development funds for two years. if the states appear to be in consensus on the need to prevent abuses, federal intervention is neither necessary nor appropriate. and so this attempt at legislation to respond to kilo which affirmed the city's use of eminent domain to take and transfer property from one private party to another for the public purpose of economic development. in the wake of that decision there was concern that are states and cities could expand their use of eminent domain to
the detriment of politically marginalized groups. and so i think this bill, in my view, unnecessarily intrudes on state decision making and violates federalism principles. i'm going to yield to my colleague from maryland, mr. raskin, to get his two cents' worth in. >> thank you, so much, mr. connors. welcome to the witnesses. it's indeed a very engaging and fascinating subject before us today. i'm particularly interested in what the witnesses have to say with respect to developments in the states since the kilo decision. as i recall kilo, the court set out kind of a typology of
answers to different kinds of situations. everybody seems to agree that if you have the government just nakedly taking "a's" property and giving it to "b" that runs afoul of the taking clause. everyone seems to agree on the other end of the spectrum that if you have the government developing for a public purpose like a bridge or a road or a park or what it might be, that it can be taken with just compensation under the takings clause. and then the question in the case was what happens if you have a general social purpose for redevelopment of a community or neighborhood? and you're taking one person's property that may not even be, quote, blighted, which has been the traditional justification for doing this, and it ends up in the hands of another private party as part of an overall development scheme. and i think what caused so much consternation was the court's
validation of a situation like this, that a public use could be defined as being part of an overarching public purpose. so i'm curious as to what the states have done to protect people in a situation like that. have they extended more state constitutional or statutory protection in a context like that where the supreme court seems to have withdrawn federal constitutional protection. and then -- then i'm also interested, if the witnesses would address the question of the utility and the specific efficacy of the legislative proposal before us. i'm not sure i understand its terms but the way i understand it is if a state or locality is engaged in a particular redevelopment project that does transfer property holder "a's"
property to property holder "b," then no economic development funding can come in for a certain period of time, five or seven years i think it was. and i'm wondering what you think about that as a solution to the problem that was caused by kilo that was so widely understood to give too much authority to the local governments to take people's property. and so is this a good answer, if the federal response is going to be along these lines, should it be a discontinuation of any federal funding for the particular project that involves the transfer of one person's property to another or should it be in general to the whole state or the whole community. because i think that there's some ambiguity in the way that legislation is written. should it be a cutoff to the entire state for any purposes or should it just be for the purposes of the particular project.
those are my thoughts and thank you very much, mr. chair and mr. connors for yielding. >> mr. conners yields back his time and i appreciate his opening statement and i thank the gentlemen. and without objection to other members, opening statements will be made part of the record. let me know introduce our witnesses. our first witness is jeffrey redfern an attorney at the institute for justice public law firm and second is tina barnes, ms. barnes is a medical building clerk and a client of the institute for justice. our thirst witness is mr. william busby. each of the witness's written statements will be entered into the record in its entirety. i ask each of the witnesses to summarize your testimony in five minutes or so. to help you stay within that time limit there's a light in front of you and you'll recognize that it is green, yellow and yellow means you have a minute left and whether it
gets to be red we hope have you summarized your thoughts but we want to hear the completion of those thoughts. so before i recognize the witnesses, it is our tradition that the subcommittee witnesses be sworn in. so witness, would you please stand to be sworn. and raise your right hand. do you swear that the testimony you're about to give before this committee is the truth, the whole truth, and nothing but the truth so help you god? you may be seated. thank you. let the record reflect that all the witnesses responded in the affirmative. and i now recognize mr. redfern for his testimony. mr. redfern. >> thank you, chairman. thank you for the opportunity to testify about eminent domain abuse, an issue that is rightly received national attention as a result of the supreme court's infamous decision indy low. i'm an attorney at the institute for justice and i'm here with my client tina barnes. she's a member of the charlestown indiana city council and she's a member of a
community that's been targeted for kilo-style redevelopment. many states passed some kind of reform. unfortunately a lot of these reforms were not meaningful and adding insult to injury, government subsidies including federal funding continues to finance these abuses. we're glad the committee is focused on this issue and we hope that congress takes action. when you litigate eminent domain cases as we at the institute for justice do, you get to see a lot of powerpoint presentations about proposed developments and they often have beautiful architectural lendings like lofty apartments, organic gentleman legality toe shops and the public officials that promote these plans they always claim that they're portraying the revitalization of the neighborhood. that's not accurate. what they're really portraying is the wholesale replacement of a poor neighborhood with a wealthy one. and what's always missing from these pictures is the fate of eminent domain's victims. you see, eminent domain is used
almost exclusively in low income neighborhoods and the people who live there simply can't afford to live in the kinds of luxury housing that the developers want to build. that's what we're seeing in charlestown where ms. barnes lives. the developer there wants to replace homes worth about $50,000 with homes worth hundreds of thousands of dollars. many of these people have absolutely no idea where they're going to go. the consequences for displaced people are devastating. they lose not only their homes, but their neighborhoods, their communities, their support networks r and these harms are too often invisible because the victims of eminent domain are literally out of sight, they're gone. the use of eminent domain for private development first took off during the 1950s and '60s during the so-called urban renewal movement. in this period americans went wild bulldozing poor neighborhoods and in the process displacing over 1 million people. normally when a million poor people are driven from their homes with no idea where they're going to go, we'd call that a refugee crisis.
but the people that wanted to raze that's neighborhoods said they were doing it for the good of the residents. for instance, the supreme court in 1954 approved the use of eminent domain to redevelop southwest washington, d.c. in that decision the court said that living in that neighborhood could, quote, suffocate the spirit and make living an almost insufferable burden. the burdens of living in poor housing don't compare to being forced out of one's home and neighborhood with no clear idea of where you're going to go. when the dust settled in southwest d.c., almost all the former residents were gone. the same stories continue to play out for decades around the country up to the present. an obvious consequence of this kind of forced displacement is economic. one study found that 86% of people displaced by eminent domain end up paying more for housing after they relocate. many small businesses such as corner stores, barber shops are completely destroyed because you
can't relocate those kind of businesses away from your customers. there are also noneconomic consequences. one study tracked down the former residents of southwest d.c. who had been displaced by eminent domain and the findings were heartbreaking. five years after forced displacement 25% of the former residents had yet to make a single friend in their new neighborhood. eminent domain doesn't just destroy low-income housing it destroys communities and structures that can't be replaced. i've studied these issues and i litigate these cases but i think my client understands better than i ever will what's at stake when governments are trying to forcibly displace homeowners. so i look forward to hearing her remarks and i also look forward to answering the subcommittee's questions. thank you again for the opportunity to testify today. >> thank you. and the chair will now recognize ms. barnes for your testimony. ms. barnes. >> thank you for the opportunity to testify about legislation that will protect the private
property rights of people like me and my neighbors. my name is tina barnes and i live in pleasant ridge located near louisville, kentucky, where i spent the first 17 years of my life. neighbors became family and helped to instill many values in me, including caring and helping others. when i found myself divorced, i moved back to pleasant ridge. i bought a duplex which is perfect for us. i have a disabled adult daughter casey who lives on one side and my two grandchildren taylor and kensy live on the other side with me. i had come home and my children were thriving. then in 2014 the unthinkable happened, our mayor wanted to bulldoze our neighborhood for a wealthy developer to build an upscale subdivision with houses costing up to a million dollars. to achieve this the mayor had applied for bep funding which is actually tarp money. he wanted to use federal money to take everything from us. the application was full of lies. it stated our homes were blighted and temporary.
really? they've been standing for 70 years through storms, tornadoes, and a hurricane. but worse of all, he called us transients. as i said i grew up here. let me tell you about some of our transients. helen still lives in the same home i went and played in. ms. smith has retired school teacher. here is a woman that has devoted her entire life to teaching and now has to worry about her home being taken from her. the brewers that lived here for generations and were a huge part of starting our volunteer fire department and lady auxiliary. my cousin, finley and his wife live next door in a home that my uncle garrison bought about 50 years ago. their daughter lives across the street. the keiths have a beautiful home and a sanctuary for a backyard that even has an irrigation system. we are far from being transients. the bep application was pulled but the mayor did not give up. he's passed numerous ordnances to rid the city of pleasant
ridge. one has been used against the landlords. they have been cited with hundreds of thousands of dollars in fines. and their only resource was to sell out to the developer for $10,000 per property. time is running out for these renters and they have nowhere to go. like robbie who is bedridden with ms. ms. it is truly sad watching them leave. some of the children that have left, like antonio, john carlos, and zack, used to play in our yard. it's been extremely hard on the adults involved, but you can imagine what this is doing to our children? how are they going to respect government after being treated this way? losing their home and having the mayor refer to us as a cloud over the city. never would i have imagined that anyone holding a public office would refer to people living in their city this way. that a public official would go after a group of citizens using such tactics as this to obtain
their privately owned property. after all, this is america, and one of the most fundamental rights is to own property. we have been fighting this battle for three years. i cannot even begin to explain the amount of stress this has placed on all of us. i've watched the decline of many of my neighbors and we've buried several. some of them was barb, she loved to collect salt and pepper shakers. a few had heart attacks like larry and peggy. see, the truth is, we know our neighborhood would have benefited from the bep funding had it been used in the manner it was intended. we ask you to not let eminent domain be used to force us out of our homes. we still believe in you, our government, and a major function of our government is to protect us. and that protection must include the right to ownership of property. so please, whatever legislation that you must pass to restrict the use of federal funds to
ensure us that protection and prevent us from having a fight like pleasant ridge battle, please do this. and, again, thank you for hearing our story. >> thank you, ms. barnes. the chair now recognize professor busby for his testimony. professor? >> yes. thanks for inviting me here today. i should preface my testimony saying that i agree that eminent domain can be abused as can any political power, i also agree it should be rarely used and i support many state law reforms to limit the uses of eminent domain. those risks of eminent domain, however, don't logically call for a single one size fits all federal law, especially that would displace more context sensitive and politically informed judgments of state and local government. so i'll break my testimony into six fairly succinct points. first, i think the bill is based
on an erroneous reading of the supreme court's kilo decision. now, it is correct that the kilo declined to bar private to private takings, transfers, it called for judicial deference to state and local government to determine if there is a public purpose. but, first it did not make radical new law, it followed about 100 years of precedent. second, it did not surrender judicial taking scrutiny, it repeatedly emphasized that purely private takings are not permitted. and it also again and again emphasized that the case involved legitimate economic development planning and no evidence of illegitimate purpose. and this discussion, as my colleagues here i think have used, that discussion created litigation opportunities if a state and local government is pursuing eminent domain without the kind of publicly accountable economic development planning and public accountable action. in addition, kilo itself welcomed and prompted state law
reforms and many states have, indeed, amended their laws to discourage such private to private takings but with a diversity of approaches. >> i would emphasize that especially valuable to state and local government that make sure eminent domain follows a very public process. kilo has been overread and states have been responsive. second, about the bill's constitutionality, i think it's mostly well crafted to fit within federal power, however, the 2012 nfi versus sebelius decision did say that conditional federal spending can be unconstitutionally coercive and so i think important for this committee and congress to assess the magnitude of this bill's financial threat to state and local government if federal economic development funds were forfeited and i have not found that in previous testimony. i think is important to hear from state and local government about that. third point eminent domain remains a legitimate and often
necessary regulatory tool. state local governments are trying to spur new developments and attract now employers and very often eminent domain and development efforts do involve efforts to assemble large parcels and an attempt to attract large private employers and large private projects. so this bill is targeted not at the exception but something that could have a very, very vast economic impact. now, eminent domain remains important to address the problem of economic holdouts. sometimes they're just good faith disputes over value, but as economists and professors have documented some involve holdouts to demand a special premium as their property becomes more and more crucial to a development effort that is well under way. eminent domain provides the answer the government has to pay and it has to pay fair market value. so, again, i think eminent domain is a bad alternative, but
it does have a place and can be important in the regulatory tool chest. fourth, does this bill fit into any traditional rationals for federal regulation? i think it doesn't. if you look at this bill the federal government has no special expertise. there are no regulatories economies of scale to have this handled at the federal level. had is not uniform standard setting to assess or prevent regulatory races to bottom and there's no cross border harms. in fact you are dealing way situation where there's a diversity of state and local conditions, and that generally cuts against a one-size-fits-all punitive federal scheme. does it make sense to impose a strong policy on booming cities? should manhattan and detroit be subject to the exact same incentives and threats? i think state and local conditions, tradeoffs goals and economic needs are generally best known by state and local
governments. my fifth point, i think that this bill actually does create a problem that people haven't previously recognized and i call this the strategic super hold out problem. that is this bill would specially empower property holders not just with the value of their land which is always something they can seek, but by being able to threaten the loss of all federal economic development funds a single holdout can threaten really not just to hold up a project, but to cause a cessation of funds that would otherwise flow to the jurisdiction. this holdout really is specially empowered and i think that's a real problem. as i suggest to my testimony, i see my time is running out, i think one way to address some of these issues would be that if this bill is to proceed is that there should be someway for people to know if they have reached a genuine agreement with state and local governments that
they couldn't take fair market value and then walk away and then sue. then similarly there should abe way for people to set until a way they know is final this would be timely challenges rather than waiting up to seven years later. thank you very much. >> thank you. i thank all the witnesses i now recognize myself for five minutes. and as i listen to the testimony here, i reflect back upon an incident that happened in one of my home towns, some years ago where there was a gentleman that farmed right on the outside edge of town that had -- he had bottom ground that had good location with highway access, gravel road access and utilities. he liked farming that piece of ground and walmart came into town and said we'd like to build a walmart here in this 17 or 19 acres that was worth probably a thousand dollars an acre at the time. he and the he said no, i like my farm and i want to live out my life doing this. and they kept upping the ante until they got up to about $545,000 as opposed to 20 or 2$5,000. and then the five kids flew motor home and said, dad you
need to think about us too. and he sold the land and walmart built the building. that's how -- now, i understand this is private to private, but that's how eminent domain is supposed to be respected and how property rights are supposed to be expected. what the value of that land is what it's worth to the owner, not what it's worth to somebody's calculation on what fair market value is. and that's why the people that have been pushed off their homes ms. barnes has testified, why it cuts so deeply because it's your homes. and it's generational, generational homes that you've been pushed off of. and so when i think of -- and a way they might have done this with walmart, they might have then instead said it's too high to bid this up to 545 thousand dollars. we're going to go to the city and appropriate pose a mall and now you're going to get all this property tax go in and condemn the property, we'll take it over, we'll build the retail out let and everything is done in a much cheaper price than paying what that land was worth to the person who owned it under their sacred property rights and sold it. so if i see a little white
square frame farmhouse or house of any kind sticking up out of an asphalt parking lot in a strip mall, that makes me happy because that's a symbol of the protection of property rights. and when i think of what the fifth amendment says nor shall private property be taken for public use and i emphasize for public use without just compensation. one thing that not only barney frank, ms. barnes and also sandra day o'connor, justice o'connor agreed on is that kilo decision stripped those three words out of the 5th amendment, for public use. so if the court can strip for public use out of the 5th amendment how then shall we rewrite the constitution if we're going to amend it to fix this problem that was created i believe by the kilo decision. and do we say we really mean if for public use or do we concede that the court can ignore the plain language of the constitution itself, then you
could look at the fifth amendment, if given them a similar amount of latitude they took in the kilo decision and argue that there's really no prohibition in the fifth amendment for the government from taking private property. it doesn't say you can't take private property, it's implied in the 5th amendment. nor shall private property be taken for public use. and so if -- if we're going to ignore for public use, then we can ignore also the prohibition on taking private property because that's less specific in the 5th amendment than the language for public use. so i am -- i am way disturbed by an amendment to the constitution that has been -- has been edited by the supreme court with a level of impunity and the impact of all of this breaks my heart. but the damage to the constitution is even greater. so i know professor busby you heard my argument on this and i wanted to give you an opportunity to respond and perhaps rebut -- the assertions i made,
professor, here's your opportunity. >> first thank you and i agree that eminent domain should be the exception. i think it's complete legitimate for state and local government to look at their conditions and create high hurdles to it. i think they generally should, and so two responses. one is the idea that eminent domain -- >> the constitutional principle that i have articulated here. >> the idea that under the constitution that eminent domain plays a role, the constitution recognizes it, it has long been one of the regulatory pieces in the tool chest. >> you agree that the supreme court stripped the three words out of the fifth amendment for public use? >> i don't. the way the court looked -- and this is it really is about a hundred years it goes back to opinions by oliver wendell homes. >> i understand that string of arguments but the effect of it has been -- what if we accept that and we look at the fifth amendment now and we accept for public use is no longer an issue, then do we use our judgment?
because that sounds to me that your testimony was we need to use our judgment at local government rather than be bound by the constitution. >> no, no, no. i think that eminent domain remains a check that the kilo case really does set out several kind of toe holds to challenge illegitimate takings. the idea that you need a public purpose, which is the phrase that's been used for about a hundred years, is -- remains in the constitution and has been well litigated. >> thank you, professor. and i will assert that's out on the fringes of the argument myself. but if the panel would indulge me, i'd like to give mr. redfern an opportunity to respond. >> first i wanted to note that whether kilo broke new ground doesn't speak to whether eminent domain is a problem and whether this bill can solve it. but i think we don't need to parse the language of kilo to determine whether it broke new ground. the data shows that it did. after it was decided, eminent domain tripled nationwide. that happened because developers understood that private property rights had been eviscerated.
we wouldn't have had a dramatic change on the ground if there hadn't been a dramatic change in the law. this idea that eminent domain should be a rare exception, everybody says that eminent doe indiana should be rare, it it should be an exception. but that isn't meaningful if it's still on the table. you don't have any leverage to negotiate if you know that if you choose not to sell the government's just going to come and condemn your land anyway. so i don't think that's much comfort to property owners. and then finally, regarding whether there are any limitations in kilo, we think that there are some toe holds and we're working to develop them, but so far under kilo, you know, it's been no holds barred in those states. we've primarily been litigating in states that have greater protection for constitutional rights. >> thank you, mr. redfern my time has run over but i recognize the ranking member from tennessee for his questions. >> thank you, sir.
this is a tough case but to make an argument on, but i do think it's a local issue. and eminent domain has done good on many occasions. sometimes it had. ms. barnes, in your situation sounds like it was maybe not done well. you were elected to the city council after this happened? >> kind of in the middle. i was elected last year and a new council came along with that and that was the hand-picked people the mayor had chosen other than myself had won. so they've been able to pass new laws to govern our city that has been absolutely targeted on to pleasant ridge. the first council is the one who voted against the bep application and that's the reason it was pulled.
>> so -- you say -- was the mayor reelected too? >> yes, he was. >> and when is the project they're putting in -- it's homes, when you say million-dollars homes? >> yes, sir. >> is pleasant ridge close to louisville, where the people live in louisville? i mean work in louisville, excuse me. >> we now have a bridge that has been built on the very outskirts of our town that connects us to louisville, kentucky, which makes it very accessible. there's a huge ford motor plant that's just minutes away from us now and then the other -- the other thing that has came into indiana army ammission plant and it's buoyaeen opened up.
so our mayor looks at our town as the next boom town. and our subdivision, our particular place has 350 houses on it and it's very localized. we can walk to anywhere in the town and be able to get to the store and buy whatever we need to. a lot of our neighbors don't even have cars because they just walk there. but there's all kinds of land outside of our neighborhood that can be used for this same purpose. it doesn't have to be our neighborhood. we have empty lots all over the place and they can build there. i don't -- i don't understand why our neighborhood, to be honest with you. i just -- it's just what they've chosen. >> and they have -- have they done all the buying of the properties? your neighborhood? >> i'm sorry? >> have they bought all the homes up in your neighborhood? >> no, sir. they bought about 150 and all of those are landlord rental
properties. they've not bought any of our homes. so we still have about 200 that's still is there, not to be sold. >> maybe there's a reason why it's called pleasant ridge and that's why they want it. >> well, i think they'll change the name, though, i'm sure. but they're not going to because i'm still going to be there. >> good luck. you give a good story. professor, how would you respond to mr. redfern's argument? >> as i understand the argument, they would like stronger protections and i just -- the main view is first this idea that there was a tripling post kilo use of eminent domain. it's very difficult to figure out whether before and after with economic conditions and the rest. and so i've always been slightly skeptical of that i've not looked at it but i think it's worth studying like if i were congress i would certainly commission a study to figure this out. but my own sense here is that eminent domain can be abused. i hope that state and local government will put a check on
it, but the idea that the federal government should prevent all jurisdictions across the country from trying to catalyze development and deal with the holdout problem would be an overreach. although i think it should be used sparingly and it could be a bad idea, it does have a place and i think that this is not an area where the federal government brings the special skills or knowledge that it should cross the board largely preclude private to private takings transfers under economic development plan. >> thank you. and just curious, where did you teach prep school? >> i taught at the western school for girls in pasadena, california. >> i went to poly tech. >> right down the street. >> right. exactly. i yield back. >> gentleman returns his time and chairman now recognizes the ranking member of the full committee, mr. connors for his questions. >> thank you, mr. chairman.
i wanted to point out to you, professor busby, that critics of kilo argue that it broke with past supreme court precedent on the issue of what constitutes public use under the takings clause. do you sympathize with that description? >> no. i don't think that's correct. if you look at public use being defined as public purpose, it goes back to the late 1800s and then there were several previous cases where the court had recognized that can include legitimate state and local choices to try to further the public purpose, where in the eminent domain involves private projects. >> does this measure, 1689, raise any constitutional red flags under the spending clause, particularly given that it
threatens a state with loss of all of its federal economic development funding for twroo years if even a locality violates the requirements of this bill? >> i believe there could be a concern. what counts after the sebelius case needs to be a large amount. but this bill doesn't actually define what falls into this category. and so what you need to have someone do is to trace how much federal dollars flow to state and local governments to see if this is truly coercive. it is, it could be unconstitutional. >> that's true. well, i thank you and i yield back the balance of my time. >> sure. thank you very much. ms. barnes i've been in congress for three months but i think you're the best witness i've seen since i got here.
thank you for your testimony, it was very powerful. you also have a very good lawyer i think. i don't know whether mr. redfern represented vera coking, but that was an institute of justice client as well. do you know who vera coking is. >> no, sir. >> she was a woman in a similar situation to you. she lived right off the boardwalk in atlantic city. somebody bought a huge hotel or land and built a huge hotel next door and wanted to create a parking lot for limousines. and the name of the guy who did that was donald trump. and she didn't want to sell her house. she was exactly in your situation. she said no way. they -- her house was around a half million dollars, they offered her $400.0 or a million. he went to the casino reinvestment authority, one of the public/private corporations set up in situations like this
to get the land and undoubtedly would have succeeded except the institute for justice intervened and was able to stop that takeover. i just found some articles about donald trump who is master of eminent domain. an article in the washington post, donald trump's history of eminent domain abuse. made a pattern out of just this kind of activity. donald trump's eminent domain love nearly cost a widow her house. case after case where he tried to force people out, he bragged about doing it. and ultimately went to these authorities to try to push people out. what does it feel like to be the object of some big wealthy developers' ambition to take your property. and force you out? what was the
psychological/emotional experience like? >> anger is definitely on the forefront. disbelief is there. you can't believe that somebody's just going to take your property just to build a bigger, prettier home. why? my home is good enough for me, my family. >> in the new jersey case, donald trump said that the house wasn't very nice and she didn't really care about the house, she just wanted more money. how do you react to that? are you in a situation where they're saying all you want is more money? >> honestly, money hasn't even played a factor because we've not even spoken about money. but even if it had been, honestly, there's no amount of money because it's my private property. i bought it. i've paid for it. my children and i live there and we're very happy with it. as, again, just because it's not big and pretty on the outside doesn't mean what's living on the inside. >> mr. chairman, could i
continue for my five minutes? >> the gentleman's time is expired and he's rerecognized for five minutes. >> thank you very much, mr. chairman. let me ask you, because here's the tough thing, council member barnes and you're a public official as well as being a homeowner and a citizen in a situation. if they were trying to take over your land for the building of a bridge, for example, or a street, would you be fighting it equally as hard as you are fighting this takeover by a big private real estate developer? >> no, sir i wouldn't. i understand those factors that would come into with a bridge. i would be disheartened and i would be hurt still that they're taking my home. but it's different. >> you would not experience the same sense of wrong and indignation you've got about turning it over to a developer to build a million dollar condo. so the distinction that the chairman of the subcommittee makes is a meaningful one. there's a difference in public use and a broadly defined public
purpose which is we want to economically redevelop and take a's land and give it to b. all right. thank you very much for your testimony. professor your testimony. professor because by -- buzz by let me come to you. i should be expected to concur with you here but all of the heartstrings are tugging me in the other direction at this time think there's a real difference between something that's a public use and just a broadly defined public purpose. what would be the problem with congress saying that we are not going to give money that goes specifically directly to a project like that? as oeasy pod to punishing the whole state and other municipalities and counties in indiana. >> you know, i think if it was a prospective with notice that people would have to identify in advance, if they were using federal dollars in connection with such a taking, that would certainly be less chilling of
all economic development involving eminent domain. that would be much less harmful to state and local developments. that definitely is not what this bill does. >> i got it that's what jumped out at me. a do you think we could define it with sufficient precision to map off, to rope off the kinds of cases we see in the new jersey case with the trump's attempt to take over the widow's house or in ms. barnes's case. >> i'm not sure because i don't know how much state and local governments are careful to track and trace money as it moves through. if typical accounting keeps track of money so they know which pool of money it's coming from, then it might be quite easy for a government to say this is, you know, this money is from the federal government and be prohibited from using it. on the other hand if it goes generally to a department which is handling public housing and
vouchers and the rest and some development efforts, then it might be difficult to handle. >> of course and then that would then argue for the more sweeping approach that seems to be embowled in the legislation now, which is don't go down this road at all because you're going to lose federal money in general. >> will don't think in the tend does -- mainly the holdout problem is not just a hypothetical, it's always there. so there are many people who absolutely will have good reasons not to sell, but there also are people who strategically demand huge premiums to sell. >> well, when we say huge premiums that's the market. my property is worth what my property's worth to me. >> i don't have to sell my house, that's what private property means, right? somebody might say the market would say your house is worth $200,000, but as in ms. barnes's case this is where my family's lived for several jenn generations and we love it and we love the neighbors and you can't offer me a million dollars. that's what happened in the
trump case he thought his money could buy her and she said we're not selling. swoent toe this public/private corporation to force her out, let's use the law to get her out. that strikes me as antithetical to the design. >> i think the national conference of state ledge satellite slate tures and vermont law schools have done studies of these uses of eminent domain and associations and i think there are somewhere people demand like 60 to 80 times the value of their property because they end up being a linchpin piece. >> i got you but if it's a real public use, then we define what just compensation is based on a fair market value, right. but in a situation like this, the parking lot that trump wanted to build for limos, now that whole property has been condemned. trump has abandoned it because of what happened in atlantic city. so you could force people out of their home, force them to sell to donald trump at a rate that they never would have accepted
and then the whole thing could have gone bankrupt as his business did a couple years later. i don't understand how that's fair. in other words, that place is a whole market parodyne on top of people's rights and property means different things to people, i think. >> i mean, i agree and it can be used in awful ways and you have to also assess places where it's important and a good legitimate use. you don't want to chill all of them. this particular bill i think is just too blunt a tool. >> mr. chair i nooeld yield back. thank you very much. the. >> the gentleman returns his time and i would say in conclusion that there's an image in my mind of a bill-signing ceremony for hr 1689 where mr. raskin and steve king might join together behind the desk of the president of the united states one day. >> and we can invite not just ms. barnes but coking too. >> and i think all the witnesses for your testimony and the interchanges we've had and the
panelists. without objection we'll have five days to submit additional questions for the witnesses or materials for the record had the this maerg is now adjourned. thank you. hemaerg is now adjour. thank you. armaerg is now adjour. thank you. imaerg is now adjourned. thank you. ngmaerg is now adjourned. thank you. is now adjourned. thank you.
w span's washington journal live every day with news and policy issues that impact you. and coming up thursday morning, georgetown university's angela stent will join us to discuss u.s./russia's relations following secretary of state's meeting in moscow monday. and rafael reiff discuss his forn foreign affairs about the need to increase funding for basic science to maintain american competitive. also bart jansen usa today writer on how passengers are
treated. be sure to watch c-span's washington journal live. join the discussion. this weekend c-span city's tour along with the help of our comcast cable partners will explore the lit rear scene and history of charlotte's ville, virginia, saturday at noon eastern on book tv we visit the university of virginia to see their exhibit on william falkner. >> we have a lot of wonder frl artifacts from falkner's time from uva. among other things we have the type writer he was issued by the university with the university property stamp on the back. we have a jacket that he wore. he, as you can see when you look at the jacket it's pretty torn up and rattie. he looked to keep his clothes for a long time. he left this jacket hanging in his office whent on his last trip to oxford, mississippi,
when he passed away. >> we'll travel to thomas jefferson's mont an chel low. >> if had you visited mont an chel low 20 years ago would you have come up the mountain and you would have just seen jefferson's beautiful neoclassical veil. but what we wanted to do was change that. we wanted to restort landscape of slavery because if you had come up this mountain top in jefferson's time the first thing you would have seen most likely would be enslaved people from the would have been no place on this mountain top that slavery was not visible pan. and we want to restore that and make that known to visitors who come here today. >> we'll also visit the miller center at the university of virginia to learn about their first-year pro squaekt. what u.s. presidents face in their first year on the job. >> and linden johnson said when he became president, no matter how big your majority is you get one year before they, the
congress, stops thinking about you, the president, and starts thinking about themselves, their own re-election. and in about january of your second year, after you've done your first year, all the members of congress are thinking about their mid-term election. and they're really cautious about taking any risk to help you get your mandated and your agenda through. >> watch c-span cities tour of charlotte'sville virginia and sunday afternoon at 2:00 p.m. on american history tv on c-span 3. working with our casual affiliates and visiting cities across the country. >> tonight on american history tv former members of the reagan administration talk about their time in the white house. the clements center for national security in austin, texas, hosteda i three-day conference on ronald reagan. we'll begin with a panel on his leadership style and diplomatic
legacy. >> i'm will inboden one of the directors for the clements center and your host today and honored to be here with thee distinguished statesman, three alumni of the reagan administration. so rather than the formal academic papers that we're having on most of the other panels, this one will be more informal recollections and reminiscence of what it was like working in the administration for the president himself, the atmosphere at the time. and each of our panelists will offer ten to 15 minutes of prefatory comments and then we'll turn it over to q&a. for my fellow mishistorians in the room, this is the time to do the expert interview you've been wanting do. introducing our three panelists first over on this end the man who needs no introduction i mean it lirt rally because i introduced him three hours ago, again ambassor