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Another Failure of the Kelo Backlash - President Bush's Executive Order on Takings:

In an earlier post, I described how the political backlash against the Supreme Court's decision Kelo v. City of New London has largely fallen short of the mark, despite massive public outrage against the condemnation of property to promote "economic development" by other private parties. I noted that numerous state legislatures are enacting laws that supposedly ban Kelo-style but actually achieve little or nothing.

Today's presidential executive order on eminent domain continues this pattern. On the surface, the order seems to forbid federal agencies from undertaking economic development condemnations. But its wording undercuts this goal. Here is the key part of the text (hat tip: InstaPundit):

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:

Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

Read carefully, the order does not in fact bar condemnations that transfer property to other private parties for economic development. Instead, it permits them to continue so long as they are "for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."

Unfortunately, this language validates virtually any economic development condemnation that the feds might want to pursue. Officials can (and do) always claim that the goal of a taking is to benefit "the general public" and not "merely" the new owners. This is not a new pattern, but one that bedeviled takings litigation long before Kelo. Indeed, the New London authorities made such claims in Kelo itself and they were accepted by all nine Supreme Court justices, including the four dissenters, as well as by the Connecticut Supreme Court (including its three dissenters). This despite considerable evidence that the takings were instigated by the Pfizer Corporation, which at the time hoped to benefit from them. Not all the evidence of Pfizer's role was available at the time of the trial, but enough was submitted to demonstrate that Pfizer played a crucial role (e.g. - the head of a firm that helped prepare New London's development plan testifed that Pfizer was the "10,000 pound gorilla" behind the takings). Nonetheless, the courts accepted New London's claims that its officials acted in good faith, since they could have been intending to benefit the public as well as Pfizer.

As the Kelo experience shows, it is usually difficult or impossible to prove that such claims are insincere. Indeed, at least to a certain extent, the claims will always be correct. Virtually any economic development condemnation provides at least some benefit to "the general public," if only because the productivity of the new owner's business is likely to increase, thereby promoting development and raising tax revenue. The problem, as I have documented in great detail elsewhere, (e.g., here and here), is that these benefits can usually be achieved by methods other than coercion, and are unlikely to be worth the cost of condemning the property and eliminating preexisting uses.

Even had President Bush's order been better worded, its impact would have been limited. The vast majority of economic development condemnations are undertaken by state and local governments, not by federal agencies. Nonetheless, it is unfortunate that the Bush administration has chosen to join in the charade of pretending to do something about Kelo while actually doing little or nothing.

UPDATE: Tim Sandefur of the Pacific Legal Foundation takes a similarly critical view of the executive order. I agree with almost everything Tim says. However, I am not as certain as he is that "it's gratifying to see the President take an interest in this issue." Bogus reform efforts such as this one create a danger that the public will be falsely persuaded that the problem has been solved; indeed, I suspect that in some cases that is part of their purpose (though I have no evidence of the Bush Administration's motives for issuing this order). Sometimes, a bogus reform is worse than no reform at all.

UPDATE #2: Some commenters cite Section 3 of the order (which I did not quote, but did link) and argue that it provides a good list of the situations where eminent domain should be allowed. I agree that Section 3 would be quite defensible if it were an exhaustive list of the situations where the order permits federal agencies to condemn property. In fact, however, Section 3 is a list of exceptions to the rule set out in Section 1. This is evident from the fact that Section 3 is entitled "Exclusions" and begins with the words:

Nothing in this order shall be construed to prohibit a taking of private property by the Federal Government, that otherwise complies with applicable law, for the purpose of: [a list of purposes follows].

Therefore, Section 3 merely lists situations where property can be condemned even if doing so violates the rule set out in Section 1: that condemnations must not be "merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."

The Divagator (mail) (www):
Thanks for the post...I'd missed this.
6.23.2006 10:17pm
Beerslurpy (mail) (www):
I just spread the word to THR.
6.23.2006 11:36pm
Witness (mail):
Further evidence that you are the best addition to VC since they started this thing.
6.24.2006 1:03am
Marcus1 (mail) (www):
I dig Prof. Somin too.

However: seems to me your wish is only granted by a constitutional amendment saying that "eminent domain shall only be used where the government keeps the land." Or however else you think the line between acceptable and unacceptable takings should be drawn. The plain absence of any such constitutional test, whatever you think it should be, (and difficulty in even rendering one legislatively, when you're assuming legislative corruption)is, I think, why all the other attempts keep disapointing.

Incidentally, I'd support such an amendment. Although I might hold out unless it were tied to a clause acknowleding the right to privacy.
6.24.2006 1:27am
Ilya Somin:
It seems to me your wish is only granted by a constitutional amendment saying that "eminent domain shall only be used where the government keeps the land." Or however else you think the line between acceptable and unacceptable takings should be drawn.

I would be happy to have an appropriately phrased amendment. But I would also be happy to have legislative (or, in this case, executive) reform that stops short of that, but still gives us a substantial improvement over the status quo. The problem with Bush's order is not that it falls short of the Somin ideal, but that it doesn't impose any meaningful restrictions on economic development takings at all.
6.24.2006 1:38am
Lev:
right


and for the purpose of benefiting the general public


That's Kelo isn't it.


and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.


So if the tax take increases, then the condemnation and gift to a private party is not "merely" to benefit the private party, which is also Kelo.
6.24.2006 1:46am
Gattsuru (mail):
I'd rather Bush start small and ratchet down the loose ends or have the loose ends be dealt with off the paper, rather than have the Supreme Court slam him (or, worse, have the legislature smack him with claims of "stopping schools/bridges/highways/policestations/firestations from being built".

The EO itself doesn't really matter - I don't think the federal government does much in the way of eminent domain, other than military bases or similar, and an executive order acting without discretionary power built into the law is only going to be enforcable where Bush could fire the violator anyway - but this'll be a nice bit of political blackmail to make sure similar executive orders get passed on a state by state basis, and THOSE should be a lot better tied down on the edges.
6.24.2006 2:47am
Windypundit (www):
The "increased tax revenue" argument has always struck me as a very poor justification for taking someone's property. It might work---revenues might increase---but it's hardly the least intrusive way to accomplish that.

If a government wants more tax revenue, all it has to do is use its unquestioned power to increase taxes. Eminent domain is totally unnecessary for that purpose.
6.24.2006 4:10am
jvarisco (www):
Eminent Domain has always been in the constitution...do you want it to be removed? It does not seem like much else would satisfy you.
6.24.2006 9:20am
PersonFromPorlock:
Some years ago the Bush administration came out in favor of an individual right to keep and bear arms... and then did nothing further about it. I suspect this 'defense' of property rights is drawn from the same well of cynicism about his base's gullibility.
6.24.2006 9:25am
Peter Wimsey:
Does the federal government actually exercise eminent domain for the benefit of a private party as in Kelo? I am under the impression - and perhaps this is mistaken - that public-private takings are almost exclusively conducted by political subdivisions and local units of government.

I would also question whether state legislative approaches to addressing Kelo were really ineffective. If "ineffective" is defined as prohibiting all public-private takings, this is almost certainly true. However, the legislative approach taken in many states significantly limits Kelo-type abuses, while permitting some public-private takings; I don't think that this is really "ineffective."

I observed - at various levels - the testimony and debate concerning my state's legislative response to Kelo; among other things, this suggested to me that the Sct. was absolutely right to allow the states to do the line drawing WRT eminent domain. And while almost everyone found a New London-style taking (residences taken to build a hotel) unacceptable, people genuinely found a lot of gray areas involving: (1) a taking to permit an already existing factory to expand if the expansion brings a significant number of jobs; and (2) takings involving certain renewal projects in high-crime areas containing a large number of substandard rental housing and abandoned housing.

In case anyone is interested, here is a link to the bill
6.24.2006 11:29am
anonrobt (mail):
It may well be time to take serious look at Eminent Domain, recognising it as an archaic holdover of feudal mindset, and as such needs be totally removed... there are other ways of gaining supposed needed property - and it would helpfully put a crimp in the enlarging government... bluntly, it is Un-American in spirit, another of the 'wrinkles' [like slavery was] needing ironing out of the Constitution...
6.24.2006 11:31am
Peter Wimsey:
The "link" button doesn't seem to work - here is the link: eminent domain bill
6.24.2006 11:42am
A. Nonymous (mail):

how the political backlash against the Supreme Court's decision Kelo v. City of New London has largely fallen short of the mark


Come again? Let's take a look.

South Dakota's JAIL4JUDGES amendment got onto that state's ballot this November (as Amendment E) in large measure because of the proponents mentioning of Kelo as somehow proving judges as part of the New World Order conspiracy were taking people's property. Much if not all their campaign literature referenced the case as proof of the need to end judicial immunity and subject judges to civil suit and imprisionment.

Read more here and here here and here.

Judges who risk having their houses taken (New Hampshire and Souter) or risk being civilly sued and IMPRISONED (South Dakota and Amendment E), all as backlash from Kelo. And I have not even mentioned the eminent domain intiatives going onto the ballot in Nevada and elsewhere that would strip judges of authority to rule in eminent domain cases.

Let us not pretend there is no backlash, or that it has fallen short of some mark as determined by you.
6.24.2006 11:50am
David Sucher (mail) (www):
"...these benefits can usually be achieved by methods other than coercion..."

And aren't you, Prof. Somin, in essence arguing for an extension of a "least instrusive means test" to all government action? ...to breaking down of the wall between "fundamental rights" and economic rights?

I happen to agree in theory. But such a move would reverse 80 years of Supreme Court decision-making. No? It could involve Courts in reviewing the efficacy of every local zoning ordinance. In theory, some Environmental Policy Acts (Washington State's) do something similar when they require a review of "alternatives to the proposed action" but I am not aware that our Courts have ever stepped in to require the adoption of a "least impacting alternative."
6.24.2006 11:58am
Public_Defender (mail):
<blockquote>
Some years ago the Bush administration came out in favor of an individual right to keep and bear arms... and then did nothing further about it. I suspect this 'defense' of property rights is drawn from the same well of cynicism about his base's gullibility.
</blockquote>

So, the Bush administration engages in high rhetoric, but then fudges the rhetoric with caveats that make the rhetoric meaningless. What's new?

There was a book in the past few years about Bush Administration spin. The argument was that the Bushies don't straight-out lie, they are just very good at being deceitful without quite saying anything demonstrably fault. You have to read anything that Bush says with a cynical lawyer's eye. And this from an administration that criticized Clinton for arguing about the definition of "is."
6.24.2006 12:38pm
Gattsuru (mail):
What's the last anti-NRA stance the Bush administration has taken? Anybody? They let the Clinton AWB die (thank god), and pushed forward a pretty powerful and not incredibly popular law to prevent frivolous lawsuits against gun makers. Did you honestly think that a Republican government in house was suddenly going to let students carry at schools or kill the BATFE? They're good goals, but not likely ones.

Very few executive orders are *written* to be powerful. The Emanciation Proclimation, probably the single best-known executive order, didn't say anything about the slave states still in the Union (but we took care of them anyway).
6.24.2006 1:42pm
Rush (mail):
Clinton did the same thing with his "Don't ask don't smell" gesture to gays, which actually resulted in more gays being kicked out of the military than under Bush the elder.
6.24.2006 2:02pm
Jon Black (mail):
I appreciate the post, but I wold be much more impressed if the poster had set forth language which he feels would ahave been appropriate.

The ultimate problem in this area is that virtually everyone agrees that emninent domain is reasonable and neccesary in certain instances and unreasonable in others. As such, we have a "line-drawing" problem. If you want to knock the line drawn in the EO, thats fine as far as it goes, but without a line of your own for illustration, all you are really doing is repeating the issue. The issue being that it is damned hard to draw a line in this area.
6.24.2006 2:22pm
PersonFromPorlock:

Did you honestly think that a Republican government in house was suddenly going to let students carry at schools or kill the BATFE?


I was thinking more of their finding something objectionable about DC's prohibitory (and well within the federal orbit) gun laws.
6.24.2006 3:35pm
David M. Nieporent (www):
I appreciate the post, but I wold be much more impressed if the poster had set forth language which he feels would ahave been appropriate.
"When we say 'public use', we mean 'public use'. Not 'private use with vague assertions of indirect public benefit.'"

The issue being that it is damned hard to draw a line in this area.
Actually, Section 3 of the EO, not quoted by Prof. Somin but available in the link, is pretty good. There may be one or two quibbles, but if eminent domain was limited to those categories, most of the abuses would disappear.
6.24.2006 3:47pm
Brett Bellmore (mail):

What's the last anti-NRA stance the Bush administration has taken? Anybody?


Successfully urging the Supreme court to reject all 2nd amendment cases, while defending the constitutionality of every gun control law ever enacted, comes to mind.

Sabotoging the Armed Pilots program comes to mind. They've been darned stubborn about it, too.

Failing to reverse any previous administration's anti-gun executive orders comes to mind.

Promising to sign an extension of the '94 "Assault weapon" ban if Congress sent it to him, comes to mind.

Essentially everything pro-gun that happened during this administration happened because of Republicans in Congress, not because of Bush. The best you can say of Bush is that he didn't put up much of a fight.
6.24.2006 4:07pm
Public_Defender (mail):

Actually, Section 3 of the EO, not quoted by Prof. Somin but available in the link, is pretty good. There may be one or two quibbles, but if eminent domain was limited to those categories, most of the abuses would disappear.


I understand that you are making the point that Section 3 would be a good description if it were adopted alone, but it was not adopted alone.

Section 3 is a list of specific situations in which eminent domain is OK, but Section 1 goes much, much farther. That section allows eminent domain for the public benefit as long as the tranfer isn't "merely" for the purpose of economically benefiting a private entity.

I have got to credit the Bushies on this one. They pretend to oppose Kelo, while at the same time issuing an order that is legally barely distinguishable from Kelo. They even managed to fool the folks over at National Review, although that might not be too hard. They introduced the EO with some gibberish explaining that the EO shows why "elections matter," whatever that means.

When it comes to deceit, Bush and company make Bill Clinton look like an amateur. This is why some of us liberals weren't that fazed by Clinton in the who meaning-of-is crisis. We knew that the alternative would be at least as dishonest, but for the wrong cause and about more important matters. Unfortunately, Bush has proven us right.
6.24.2006 4:20pm
Dave Hardy (mail) (www):
I have problems with the requirement: that condemnations must not be "merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."

Note the "merely." The Kelo taking itself might have passed muster under this EO -- it arguably wasn't "merely" for private benefit. In fact, I doubt a taking for purely private benefit would pass constitutional muster. Note also the customary provision at the end that the EO confers no private rights -- it is thus meaningless except to the extent someone wants to comply.

I did the Interior manual on complying with the Bush I Exec Order on takings, and a bear of a task it was, since the Atty Gen standards implementing it came in two huge documents, somewhat inconsistent, and drafted by someone who knew little of how agencies really worked.

BTW, the worst abuses I saw of the takings power came in the later efforts of the Tenn. Valley Authority (the early ones might have been OK, I dunno, but by the 1970s or so it was pure boondoggle). They tried for an exemption from the Endangered Species Act, and have to prove economic viability and need for additional dams.

The only way they could come up with a positive number on that was to (1) assume that the lake would draw recreational visitors from pre-existing lakes, thereby making the latter economically unfeasible, and (2) assume that they'd condemn more land than needed, paying for it as inaccessible mountain land, then after the dam was built, sell it as lakefront property.
6.24.2006 5:28pm
David M. Nieporent (www):
I understand that you are making the point that Section 3 would be a good description if it were adopted alone, but it was not adopted alone.
Indeed. I did not mean to imply that Section 3 saved Bush's order, and I apologize if anybody got that impression. I was merely citing it as a response to the claim about the difficulty of line-drawing.
6.24.2006 7:19pm
GooberMax:
Read carefully, the order does not in fact bar condemnations that transfer property to other private parties for economic development. Instead, it permits them to continue so long as they are "for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."

Hey, I've got a wacky idea...perhaps that last part doesn't cover the whole story?

Take another look at Section 1:
"...It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public..."

Emphasis is mine. Note the word "and" in that italicized text. Would not any pro-property rights lawyer be able to present that italicized text persuasively as a three-part list, the terms of which must all be met in order to satisfy the order? If so, it would seem that the "public use" original intent is reaffirmed here as an indispensable condition of any land seizure.

Whether or not the President meant this as a smokescreen, wouldn't dedicated lawyers be able to parlay that crucial "and" into a return to not only a pre-Kelo, but even a pre-Berman reading of eminent domain?
6.24.2006 8:05pm
Ilya Somin:
Take another look at Section 1:

"...It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public..."

Emphasis is mine. Note the word "and" in that italicized text. Would not any pro-property rights lawyer be able to present that italicized text persuasively as a three-part list, the terms of which must all be met in order to satisfy the order? If so, it would seem that the "public use" original intent is reaffirmed here as an indispensable condition of any land seizure.


No, that wouldn't work. Including the words "public use" without defining them will almost certainly be interpreted in accordance with the current judicial definition of the term - which under Berman, Midkiff, and Kelo would include almost any condemnation that the government might want to undertake. When the phrase "public use" is included in a statute or executive order and not defined, the standard practice is to interpret it in accordance with Supreme Court precedent.

So, yes, it is a 3 part list, but parts 1 and 3 ("public use" and "benefitting the general public") are ridiculously easy to satisfy, while compensation is already required by the judiciary.
6.24.2006 8:38pm
David M. Nieporent (www):
Whether or not the President meant this as a smokescreen, wouldn't dedicated lawyers be able to parlay that crucial "and" into a return to not only a pre-Kelo, but even a pre-Berman reading of eminent domain?
No; you need to look at Section 4(d). You can't do anything with this, no matter how dedicated you are.
6.24.2006 9:58pm
Public_Defender (mail):

Indeed. I did not mean to imply that Section 3 saved Bush's order, and I apologize if anybody got that impression. I was merely citing it as a response to the claim about the difficulty of line-drawing.


You were clear. I was just using your comment to make the point that legally, Section 3 is just a bunch of deceptive platitudes.

When one of the authors at National Review said that this proclamation shows that "elections matter," does she mean that the EO shows why we should elect an honest president? Since there is little (if any) difference between Bush's EO and Stevens' majority opinion in Kelo, does she mean that we need more justices like Stevens?
6.25.2006 7:31am
Judy:
What I don't understand is why the political pressure here is getting to legislators but not to executive decisionmakers themselves. It seems to me that all of these city councils and local managers would recognize that their jobs are on the line when they make irresponsible and ill-advised eminent domain actions. Perhaps the problem is that people aren't making the eminent domain abuse an election issue at the local level. And that's really the interesting question. If so many people hate Kelo so much that they're forcing all this legislative action (even if eventually tempered by special interest lobbying or local government arm-twisting), why can't these same people make it electorally important to the people wielding the big stick here?

I have my own theories on this, namely that the (white/male/middle-upper class) thought leaders on this issue are not doing a good enough job reaching out to the (minority/lower-working class) population that is probably more likely to be affected by eminent domain decisions and would give the movement meaningful local electoral power here. But I would be interested in hearing other ideas of why people don't campaign on this issue.
6.25.2006 11:02pm