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Eminent domain abuse – a very welcome development!

President Bush, a man I have never had much affection for and about whom I have very few good things to say, has just struck a blow for the good guys of the issue of eminent domain abuse (UK= compulsory purchase) by signing an executive order that the US federal government can only seize private property for public use and not in order to turn it over to private property developers.

Although the vast majority of property seized in the United State is does by state and local authorities, this is nevertheless a very welcome development indeed and a definite move in the right direction.

19 comments to Eminent domain abuse – a very welcome development!

  • Sandy P

    Don’t be fooled, it’s just a cover. Doesn’t “do” anything.

  • Pham Nuwen

    Exactly Sandy.

    It was *supposed* to be clear in the Bill of Rights

    “Amendment V

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    of course that assumes you think the US. Constitution/Bill of Rights is valid in the first place, but hey…

    Nope the point here is that the courts have completely failed to uphold the bill of rights in this, and the president making empty promises does nothing to protect the people, or to correct the courts failure.

  • mrbill

    The whole thing is a ruse. The real estate developers and Chamber of Commerce got to them to pull the pressure off by some token action. The same group pushing for unlimited immigration. 95% of takings are by local thugs for tax money to give to big developers. Its just another smoke screen. Most states are on to it and working to make up their own.

  • Ben Jarrell

    I think this is a bigger deal than most of the commentators in this post are giving credit. In the realm of US administrative law, this is a pretty far reaching edict insofar as it will be handed down to all executive agencies to comport with. The real test of this order will come when it is known what guidelines the US Attorney General hands down. IF the guidelines are broad enough, it could make it very difficult and costly for local and state agencies to frivolously use their eminent domain power.

    For instance, the US Department of Transportation could pass an internal rule that would prevent it from dispersing funds to states or municipalities that acted contrary to this policy, the Department of Treasury could decline to subsidize municipal bonds, etc. So, while this order doesn’t prevent states or municipalities from using ED power, it might make them think twice about the cosnequences of doing so.

    True, the mere passing of the order does nothing in and of itself- but it might have a more substantial trickle down effect than other commentors recognize.

  • Pham Nuwen

    Ben, the key word there I think is *MIGHT*.

    While it possible for it to have a trickle down effect, I very much doubt it will. The president didn’t do this because of a sudden realization of principle, or even because it conforms to his party politics. No, this simply is a move to try and prop up a few republican candidates in the midterms. Outside of a few areas where this will play well for those candidates this will be unpublicized, and the second it becomes inconvenient another executive order will overturn it.

    I’ll point out that such ‘executive’ orders are not only democracy at it’s worst, they are absolutely treasonous.

  • Clearly this executive order is official recognition that the Kelo verdict is not ‘okay’. Why? Because I think the political class in the USA realises that Kelo has exposed the true nature of the system that prevails in the USA to people who were otherwise dumbly complacent as their property right have been eroded year after year by the state under both parties. After Kelo the elephant in the middle of the room can no longer be explained away.

    This executive order is largely symbolic as most of the depredation happens at a lower level but symbols do matter.

  • I think Ben is onto something. The irony is that because local and state governments get so much money from the Feds, they are vulnerable to pressure and if the President wants to his administration can push them in the right direction.

    Of course being dependent on the central government for anything is not a good situation, but in this case it may, repeat may, have a good result. I think the Kelo case woke a lot of people up and as Mel Brooks said in Blazing Saddles “Gentlemen ! We have to save our phoney baloney jobs !!”

  • Sorry Perry, it appears this order is just bluster, and the wording itself contradicts its stated goal. See Volokh here(Link).

  • The U.S. federal government doesn’t do this type of stuff anyway, it’s a local issue.

    As long as compensation is “just” then I’m OK with any local taking which is determined to benefit the public–including selling it to land developers.

  • Uain

    You might be missing the bigger picture here. There are challenges to Kelo working their way through the courts and this might be a Bush *strategery* to help the feckless supreme court liberals, who got it wrong last time.

  • Ben Jarrell


    Mind explaining your rationale on the last bit? Executive agencies are created by Congress and put under the control of the President; in ordering them about, the President is merely executing the laws that conferred that authority to him.

    If you take issue with the administrative state, that is another issue entirely- but insofar as we do have an administrative state in this country, I am glad to see President using that authority in a somewhat constructive manner. Although I can sympathize with objections to the role of administrative agencies, it seems unconstructive to simply dismiss them as unconstitutional- that simply smacks of an ignorance of constitutional/administrative law and an unwillingness to confront issues that actually exist.

    I admitted already that the crux of this issue lies in what the Attorney General does. While this order *might* not have the effect I’ve outlined, that outcome certainly *would not* occur without the order. In which case, we aren’t any worse off than we were. Maybe this is a cynical election year ploy. But in locales where this is a big issue, many state legislatures have addressed the issue already.

  • As long as compensation is “just” then I’m OK with any local taking which is determined to benefit the public–including selling it to land developers.

    NO eminent domain siezure is “just” because it is not a free purchase. Moreover it is a charter for corruption in which the rich simply take from the less rich because it is cheaper to purchase political influence than purchase property from its owner.

    Anything which reduces the number of eminent domain siezures is a good thing.

  • No compensation is “just” in these cases. A seller should not be forced to accept compensation. A transaction is only just if the buyer and seller freely agree to a price.

  • Heh, snap, Perry! That will teach me to leave my comments written but unposted…

  • As Volokh has pointed out, this might not be working in legal reality, but it’s certainly a positive development for political imagination.

    This is important. Even if at the moment it is not working, if the support of public opinion weighs in favor of private property, sooner or later we will be able to call them on the hypocrisy.

    It should be obvious that the real execution of politics is never like it is officially presented; but if it leans to and develops in the right direction, it’s still a good outcome, even if the law falls short of the goal at the moment.

  • Deleted, completely off topic (presumably posted to the wrong article)

  • ziz

    Irrelevent and off topic remarks deleted. The subject is eminent domain, not Iraq. Sheesh

  • Paul Marks

    I thought that it was me who tended to see the bad side of things – but some of the comments here make me look like a ray of sunshine.

    Yes “public use” should not mean “steal and hand over to a developer in the hopes of greater tax revenue” and yes I know about Mr Bush’s baseball stadium deal in Texas.

    However, various States have now passed Statutes making such theft unlawful (under State law as well as natural law – under which it was, of course, unlawful already) and now President Bush has signed an Executive Order making such actions unlawful (under government law) for Federal agencies.

    This is good news!

    In Britian (not far from where I type this) perfectly good houses are still being stolen from their owners and are being given to delelopers to knock down.

    The difference between Britian and the United States is that in Britian there are few newspaper articles and in the United States there are State statutes and now the President has signed an Executive Order.

    Certainly the United States could be much better than it is (and it is a very long way from what the Constitution lays down), but people who live in Britain know that it could be a lot worse.

  • Kelo was a disaster and reduced many Americans’ respect for and trust in the court to guard our constitutional rights. The majority justices obviously could not read and understand the plain sense of the text.

    However, it has sparked a great movement in the states: many legislators and citizens have scrutinized their state consitutions and are drafting amendments to them to plug the hole that Kelo left.

    However, eminent domain can work both ways. I think it was in Oregon recently where the city council took back the property they did an ED takings on for a big box store. They said their new use for it would be in greater public interest! (I forget why they took it.)

    This is also wrong on many levels, but I relish the fact that at least once the private developers got nailed and can see that it can be used against them. Taste of their own medicine.

    However, living in coal country, many Americans have no idea how tenuous their property rights are even before/beyond Kelo. You would not believe what goes on here!

    I’m not a big fan of Dubya, but I don’t go berserk at the mention of his name either. This is one thing within his power that he could do right. Cheers.

    Now it’s up to us in the states to follow through.