	Introduction

On June 23, 2005, the Supreme Court handed down Kelo v. City of New London , (1) addressing whether, under theFifth Amendment Takings Clause, the sovereign power of eminent domain ("condemnation") canbe used to transfer private property to new private owners for the purpose of economicdevelopment. 4128 hews tothe prevalent congressional approach to Kelo : imposing a condemnation-restricting condition on thegrant of federal money. 4128 and passed the House376-38 on November 3, 2005. This report also examines a bill amendment introduced by Senator Bond, like H.R. 4088 (restricting federal funds). Section 2(a) sets out the state andlocal activities that the bill prohibits -- 
No State or political subdivision of a State shall exerciseits power of eminent domain, or allow the exercise of such power by any person or entity to whichsuch power has been delegated, over property to be used for economic development or over propertythat is subsequently used for economic development, if that State received Federal economicdevelopment funds during any fiscal year in which it does so. (8) 
Section 4: Private Right of Action. Other bill provisions areas follows. This omission raises the possibility that while aparcel was initially condemned in good faith for a non-economic-development purpose (as definedin the bill), its use many years or even decades later for economic development due to unforeseenchange in the law, policy priorities, or funding availability would trigger loss of federal funds perSection 2(b). Absence of Nexus and Proportionality Requirements. Rather, the fundscome with a condition that if a violative condemnation occurs during the same fiscal year as themoney is received, other federal monies are blocked -- namely, economic development funds for thetwo fiscal years after a court discerns the prohibited condemnation. (18) Certainly H.R.4128 presents a sharp contrast to some of the other Kelo bills in Congress, which terminateonly those funds destined for the particular project at which the offending condemnation took place. Returning the Condemned Property. Section 2(c), allowing the offending condemnor toreturn the property and thereby end the funds cut-off, does not explicitly state that the condemneehas to return the money received for the property. Thus, it seems H.R. Does the plaintiff seeking such remedy satisfy the standing to sue requirements derivedfrom Article III of the Constitution? Its full text states -- 
No funds in this Act may be used to support any federal,state, or local projects that seek to use the power of eminent domain, unless eminent domain isemployed only for a public use:
Provided, That for purposes of this section, public useshall not be construed to include economic development that primarily benefits privateentities:
Provided further, That any use of funds for mass transit,railroad, airport, seaport, or highway projects as well as utility projects which benefit or serve thegeneral public (including energy-related, communication-related, water-related andwastewater-related infrastructure), other structures designated for use by the general public or whichhave other common-carrier or public-utility functions that serve the general public and are subjectto regulation and oversight by the government, and projects for the removal of an immediate threatto public health and safety or brownsfield (35) as defined in the Small Business Liability Relief andBrownsfield (36) Revitalization Act (Public Law 107-118) shall be considered a public use for purposes of eminentdomain:
Provided further, That the Government AccountabilityOffice ... shall conduct a study to be submitted to the Congress within 12 months of the enactmentof this Act on the nationwide use of eminent domain, including the procedures used and the resultsaccomplished on a state-by-state basis as well as the impact on individual property owners and onthe affected communities. By its reference to "funds in this Act," the Bond Amendment limits itself to federal monies used ordisbursed by the agencies receiving appropriations under the statute, and applies only to FY2006funds. 4128 's list of exceptions from its definition of "economic development."
On June 23, 2005, the Supreme Court handed down Kelo v. City of New London , holding thatunder the Fifth Amendment Takings Clause, the sovereign power of eminent domain("condemnation") can be used to transfer private property to new private owners for the purpose ofeconomic development. Kelo sparked a public outcry and a flurry of legislative proposals inCongress and the states to restrict the use of eminent domain.
The principal Kelo bill in Congress is H.R. 4128 , the "Sensenbrenner bill,"which passed the House on November 3, 2005. Its key provision prohibits states and their politicalsubdivisions (hereinafter "states") from using eminent domain to transfer private property to otherprivate parties for economic development -- or allowing their delegatees to do so. The prohibitionapplies to any fiscal year after the bill's enactment in which the state received federal economicdevelopment funds. A state that violates the prohibition is ineligible to receive federal economicdevelopment funds for two fiscal years following a judicial determination of violation -- a penaltyenforceable by private right of action.
H.R. 4128 raises several legal issues. The prohibition on economic developmentcondemnations extends not only to land taken for the explicit purpose of economic development butalso to land subsequently so used. The latter coverage raises the possibility that although a parcelwas initially condemned for a non-prohibited purpose, its use years later for a prohibited one wouldtrigger the two-year cut-off of federal funds. Nor does there seem to be any proportionalityrequirement between the prohibited condemnations and the length and scope of the federal fundssuspension. If Congress's Spending Power includes a proportionality requirement for conditions onfederal funds, as the Court suggests, the absence of proportionality in some of the bill's applicationsmay raise a constitutional issue.
Persons forced to move by a prohibited condemnation may run into a standing problemshould they attempt to use the bill's right of action to impose a funds suspension. Standing requiresthat the remedy sought in an Article III court will redress the complained-of injury. A suspensionof federal funding to the offending jurisdiction does not redress the fact that the person was madeto move, unless it can be argued that the funding cut-off makes it more likely that the jurisdictionwill elect to return the wrongfully condemned property.
The Bond Amendment, inserted into an FY2006 appropriations bill by Senator Bond, is nowenacted law. Like H.R. 4128 , it attaches a condemnation-restricting condition tofederal funds, though limited to funds appropriated under the statute. The Amendment's list ofacceptable and unacceptable condemnation purposes largely echoes existing case law construing the"public use" prerequisite for condemnation in the Constitution.