Mr. Speaker, I think we all agree that the Constitution's protection of property rights must be preserved.

Let us be clear. This bill has nothing do with the Kelo decision, though they keep mentioning that. It has nothing to do with eminent domain procedures. Separate issue.

The Constitution provides for just compensation when Government takes property for a public purpose; and when it does it up front, that is eminent domain. On that much there is general agreement.

This bill is something different, something radically and dangerously different. It goes far outside the bounds of the Constitution to reward big developers and polluters whenever local government tries to preserve the quality of life in our communities by controlling the spread of huge landfills or sprawling subdivisions or factory farms or adult bookstores. It does it primarily by making a number of changes to the substance of law. I will not even talk about, I will allude to it, but I am not going to talk in detail about the forum shopping that this brings into Federal court.

By the substantive changes in the law, the bill attempts to accomplish a partial legislative override of the so-called property as a whole rule in takings litigation.

The bill states that taking claims shall be decided with reference to each subdivided lot regardless of ownership, ``if such lot is taxed or is otherwise treated and recognized as an individual property unit by State, territory or the District of Columbia.''

Regulations, local zoning regulations, wetlands regulations, commonly restrictive elements of some proportion of a property, while allowing development of other portions.

Under the well-established property as a whole rule, courts evaluating tax's claims, that is, evaluating a claim that some regulation is in fact a taking of private property without due process of law and therefore unconstitutional, must consider the impact of the regulation on the owner's entire property.

Courts routinely apply this rule in situations where the property has been subdivided to separate tax lots or otherwise legally subdivided on the grounds that this type of property subdivision is irrelevant to the taking's analysis.

This bill would override this established application of the property as a whole rule. For example, if a developer owned property subdivided into 100 lots, two of which were classified as wetlands, the bill would force taxpayers to pay the developer to prevent the development of those two lots, notwithstanding that he is able to build on 98 percent of the land.

The Constitution and our historic traditions have never guaranteed the ability to build on every square inch of property. This modification of the property as a whole rule would represent a substantial change in takings doctrine and would force taxpayers to pay someone for any reduction in the inability to use any inch of property under any zoning regulation.

So if you own a single family home in a suburb and you do not want to see every inch built right up to your lot line, have your Congressman vote for this bill, if you do want to see that, rather.

If you want to protect the ability of your town council to say we want zoning on half-acre lots, then you cannot support this bill. Because any town council that said you have to have at least a half acre or quarter acre or whatever is saying you cannot build on every inch and the public must pay for that.

The public will never pay for that. It is much too expensive, which means you cannot have any zoning regulations, you cannot have any limitation on density, and you cannot have any environmental regulations to prevent building on wetlands or other environmentally sensitive areas. That is what this bill does.

The bill also provides that in a case alleging a deprivation of substantive due process, the Government actions ``shall be judges to whether it is arbitrary, capricious and abuse of discretion or otherwise not in accordance with law.''

Prior to the New Deal, prior to 1937, in the so-called Lochner era, the due process clause provided the constitutional basis for a very activist Supreme Court decision striking down a wide variety of regulations: Minimum wage laws are unconstitutional, maximum hour laws are unconstitutional, factory safety laws are unconstitutional. Why? Because it was a violation of substantive due process.

This bill language seeks to revive this Lochner doctrine by promoting the revival of an expansive reading of the due process clause. Since the 1930s, the courts have applied the due process clause with considerable deference toward the elected branch of the government. Republicans talk all the time about activist courts, we do not want them, they say deference to the elected branch of the government, except here.

Reflecting this approach, Justice Samuel Alito, while sitting as a Judge of the Court of Appeals for the 3rd Circuit, rejected a due process challenge to a municipal ordinance on the basis that the Government action violates substantive due process only when it ``shocks the conscience.''

This bill would replace this relatively deferential, widely accepted standard with a wider standard focusing on whether the Government acted arbitrarily, capriciously or with an abuse of discretion.

In addition, the bill states the Government action should be judged based on whether it is otherwise not in accordance with law. This language would convert every single legal dispute over the application of garden variety zoning regulations, garden variety maximum hour, minimum wage, factory safety, environmental, whatever laws into a constitutional due process issue.

This bill goes so far to destroy the ability of communities to control the spread of huge landfills or of sprawling subdivisions or factory farms or adult bookstores. You want an adult bookstore on every block, and the town council cannot stop it, vote for this bill.

A developer can circumvent local government and normal State court consideration, drag our local governments into Federal Court and demand payment every time our constituents want to preserve their health or quality of life.

The threat of Federal court litigation is real and troubling. One representative of the National Association of Homebuilders said this bill would be a hammer to the head of every local official. Is that what we should be doing? Congress and the Federal Courts will now become a super national zoning board?

Whatever danger to the environment this legislation may pose, it is green in at least one respect. It is an outstanding example of recycling, taking us all back to those memorable days of Newt Gingrich's Contract on America, where even the Republican Congress rejected this kind of legislation in those days.

Later versions of that effort, which have been called kinder and gentler by at least one legal scholar, focused on procedural issues, a euphemism for the kind of forum shopping in this bill.

This bill is much less kind and less gentle. It greatly expands the definition of a taking. It would require the Government to provide compensation in the kinds of cases I spoke of a few minutes ago where the Constitution does not require compensation. It would allow developers to game the system by dividing their lots to squeeze money out of our communities.

Should we have to pay someone off to keep them from poisoning our drinking water? Should we have to pay people off if we want to control suburban sprawl? Is it a taking if we make them pay for some or all of the costs of the new roads, sewer lines, water lines and schools that will be needed when they are done? This bill says ``yes''.

Should local taxpayers have to pay a developer whenever any conditions are imposed on a developer before allowing them to move forward? This bill says ``yes''.

My Republican colleagues on the Judiciary Committee often rail against ``trail lawyers'' who engage in forum shopping. Now this bill, proposed by those same Members, would write forum shopping into the law to benefit one large group against everybody else: large real estate developers against every member of local government and every local constituent who cares about their community.

Let us have no doubt that this is a big developers' bill.

One of the majority's witnesses at the hearing we had on this bill last year was Frank Kottschade, a major local developer. Another was an attorney who made an impassioned plea for small property owners. But it turned out that the bio from his firm's Web site said that he represented such small property owners as Wal-Mart, the Rumpke landfill in a major expansion effort, Home Depot and General Electric. That is who this bill is for.

And let me clear up some confusion. Many Members of this House were outraged by the Supreme Court's Kelo decision, which dealt with the use of eminent domain to promote economic development. This bill, I will repeat, has nothing to do with Kelo, nothing to do with eminent domain. This bill has to do with destroying the ability of our local communities to enforce the zoning regulations, environmental protection, environmental regulation and any kind of limitation on any kind of development.

If that is what you want to do, if you want the Federal Government to come in and be the master of zoning and overrule all local regulations so that local government may as well go out of business, because Congress knows best, and in fact not even Congress, the courts know best, then vote for this bill.