Saturday, June 24, 2006

Executive Order on Eminent Domain

I know this has been discussed on the blogsphere a bit already, but I'm not sure I understand why so many people see this as a worthless half-measure.

The executive order states:
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.
Sounds pretty good to me at least to the effect it will have on the Federal level of Eminent Domain. I'll also note that like all Executive Orders, it can be changed with the next administration. Though I find it unlikely that that would happen considering the fire-storm that the SCOTUS caused with the Kelo decision.

I went and looked at the blawgs on the topic and they sound very underwhelmed. This is from Ilya Somin at the Volokh Conspiracy :
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.
I guess they have a point since the EO doesn't come out and make the rule very very specific. Though to be honest, I'm not certain that that is possible since someone (lawyers) will always weasel around the words. The specific exclusions section gives details, but doesn't eliminate the concern:
Sec. 3. Specific Exclusions. 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) public ownership or exclusive use of the property by the public, such as for a public medical facility, roadway, park, forest, governmental office building, or military reservation;

(b) projects designated for public, common carrier, public transportation, or public utility use, including those for which a fee is assessed, that serve the general public and are subject to regulation by a governmental entity;

c) conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right;

(d) preventing or mitigating a harmful use of land that constitutes a threat to public health, safety, or the environment;

(e) acquiring abandoned property;

(f) quieting title to real property;

(g) acquiring ownership or use by a public utility;

(h) facilitating the disposal or exchange of Federal property; or

(i) meeting military, law enforcement, public safety, public transportation, or public health emergencies.

Somin also makes the point that most of these economic type seizures aren't at the federal level.
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.
I think this is a bit uncharitable, since Bush is trying to draw a line at the Federal level, and I'd conjecture that in the context of an Executive Order the President couldn't legally do anything to stop state and local Eminent Domain seizures. Some states have moved forward with their own legislation, but that doesn't make any guarantees nation wide.

I looked at MuD&PHuD hoping to see some commentary, since Tom has been outspoken on the topic, but he's been quiet lately, so I'll just keep looking.

1 comment:

Granted said...

Positive movement is positive movement. Just because it doesn't do everything doesn't mean it isn't good. Still, I don't like executive orders because the only thing supporting them is the good will of the next guy in office.