President Bush Blocks Federal Eminent Domain Abuses

[LionsDen]

President Bush Blocks Federal Eminent Domain Abuses


Remember the Kelo case? Big government took private property for the benefit of other private citizens.


This is a vampire still in need of a permanent death. The President's order today is a good start.

June 26, 2006

Bush Issues Executive Order on Eminent Domain





by Pete Winn, associate editor

Last Friday marked the anniversary of the Supreme Court's infamous Kelo decision.


It has been one year since the U.S. Supreme Court issued an opinion that shocked the country and attacked the fundamental American doctrine, "A man's home is his castle."


Now the backlash is under way.


President Bush marked the anniversary of the Kelo v. New London ( Conn.) decision by issuing an executive order barring the federal government from taking private land for someone else's private use.


Specifically, Bush's order said "it is the policy of the United States to protect the rights of Americans to their private property" 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."



Bruce Hausknecht, judicial analyst for Focus on the Family Action, said Bush's order specifically requires agencies that answer to the president to make sure, when they exercise eminent domain, that people's property is taken only for a public use, such as a road or airport, rather than what Kelo allows — the taking of private property for any use, including commercial development.


"Kelo interpreted the Fifth Amendment to allow state and local governments to condemn private property for the benefit of private developers," Hausknecht said, "to build privately owned improvements on that property for the hope of a public benefit, such as a higher tax base."

The ruling, cited by family advocates as an egregious example of judicial activism, sprung from a 1997 case in which the city of New London, Conn., allowed the New London Development Corp. to seize Susette Kelo's entire neighborhood for a shopping mall. Kelo and some of her neighbors sued — and lost.


Sen. John Cornyn, R-Texas, applauded Bush for taking executive action.

http://www.family.org/cforum/news/a0041033.cfm



This was a brief quote from a much longer article.

"We did a study from 1998 to 2002, which showed more than 10,000 instances of eminent domain abuse around the country," Anderson told CitizenLink. "But in the last year, since Kelo, over 5,700 properties are being threatened or condemned for private development — that's nearly triple the yearly average."

Check it out.

[Ari]

That sucks, I'm sure some churches were planning to take non-believers land to make bigger churches. I mean come on Bush, think of the christian children.

[The Jesus Lawyer]

how that every came to be a law in the first place, is beyond me. my guess is that they got the land 'they' needed and now can look like freedom-loving good guys by putting the kibosh on the law...'they' are on either 'side'...except yours

michael

[ms_ann_thrope]

I totally agree that the Kelo decision sucked big time, but the way to fix it isn't to have the president issue yet another executive order. Why even bother to have judicial and legislative branches in government if the executive is just going to run amok and develop its own signing statements or executive orders?

[The Jesus Lawyer]

Originally Posted by ms_ann_thrope

I totally agree that the Kelo decision sucked big time, but the way to fix it isn't to have the president issue yet another executive order. Why even bother to have judicial and legislative branches in government if the executive is just going to run amok and develop its own signing statements or executive orders?

very good point...sorta softens people up to that kind of behaviour...hmmm...

michael

[erimir]

I also don't particularly care for the Kelo decision, but note the issues that ms_ann brought up.

I suppose LionsDen thought that we (being mostly "liberals") would support the decision.

[D. Scarlatti]

Originally Posted by LionsDen

The ruling, cited by family advocates as an egregious example of judicial activism ...

How is it judicial activism when the Supreme Court affirms the discretionary powers of local and state governments?

I thought conservatives were big on states' rights.

[Clutch Munny]

Originally Posted by D. Scarlatti

How is it judicial activism when the Supreme Court affirms the discretionary powers of local and state governments?

I thought conservatives were big on states' rights.

Facts are for liberal pussies.

[D. Scarlatti]

Originally Posted by The Jesus Lawyer

sorta softens people up to that kind of behaviour...

We're already softened up. As long as there's a man in Etobicoke that wants to chop off Stephen Harper's head, the power of our Fearless Wartime President is virtually unlimited.

[Clutch Munny]

[D. Scarlatti]

Originally Posted by Clutch Munny

Facts are for liberal pussies.

Speaking of liberal pussies, yesterday Justice Scalia wrote an opinion in a 6th Amendment right-to-counsel case joined by Justices Ginsberg, Breyer, Souter, and Stevens.

As Professor Douglas Berman put it, "Justice Scalia's opinion ... reads like it might have come from the desk of Justices Brennan, Marshall or Warren, except perhaps for some sharp comments about (Justice Alito's) dissent in the footnotes."

Brennan, Marshall, and Warren are, for conservatives, the most hated judges in Supreme Court history, with the possible exception of Hugo Black, who smuggled the expression "separation of church and state" into the Court's Establishment Clause jurisprudence (although they probably secretly admire Black's involvement with the Alabama KKK).

[Beth]

My state passed a bill blocking ED this year. I think it would have been best to go through the state level.

[D. Scarlatti]

Originally Posted by Beth

I think it would have been best to go through the state level.

That's essentially what a majority of the Court held in Kelo. They said that not only was the Court not in the best position to evaluate what local municipalities determined to be "public use," but also that states, not the federal government, have the power to determine their own eminent domain regulations:

We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution.

Kelo v. City of New London, 125 S. Ct. 2655, 2668 (2005).

I've never quite understood the outrage over Kelo, especially from so-called conservatives.

[ms_ann_thrope]

"This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution."

That kind of sums up why I'm not a fan of Kelo: I would have liked for SCOTUS to have been 'activist judges' and made an ethos-driven "it's just not right!" decision condemning the type of private-to-public-to-private taking proposed in New London. In other words, using the same kind of reasoning that helped Kennedy determine that there was a fundamental right to dignity and respect for sexual privacy within the sanctity of the home in Lawrence. (Lawrence being, like, my favorite case in years. It was just the right decision to make, damn it!)

For me, the idea of the home as sacred is, well, sacred. A white picket fence draws the line between The Man and me. Within the walls of my home I'm free to get my freak on, read 'dangerous' books, pick my nose, throw darts at pictures of the president, walk around naked, etc. To allow the state to wrest that from me for the financial benefit of another private party (even if the action will ultimately provide some community benefits) is an outrage. The state needs to build a highway through my living room? I can accept that. The state needs to take my living room so that they can turn it over to some asshat developer who is going to put in a Starbucks and some condos? Hell to the no!

* Bear in mind, of course, that ms_ann_thrope is a B- scholar of Constitutional Law.

[D. Scarlatti]

I hear ya, ms. For me it's just fun to point out the principle in a LionsDen thread, that principle being that the Bill of Rights, in the context of federalism, is a floor, not a ceiling.

I think it's hilarious that on the one hand LionsDen applauds the California Supreme Court for extending freedom of speech for teen preachers into privately-owned shopping malls but condemns the Connecticut Supreme Court for operating according to precisely the same principle: local, as opposed to federal, control.

Either condemn both state supreme courts for "judicial activism" or applaud them both for enforcing "states' rights."

[ManM]

Originally Posted by ms_ann_thrope

The state needs to build a highway through my living room? I can accept that. The state needs to take my living room so that they can turn it over to some asshat developer who is going to put in a Starbucks and some condos? Hell to the no!

How do you differentiate between the two? Arguably, the Starbucks and some condos are more beneficial to the community as a whole.

[ms_ann_thrope]

For starters, the highway would be operated by the state's DOT or whatever, and would not be for commercial use/profit.

[ManM]

So, the criteria is not benefit for the community, but profit?

[ms_ann_thrope]

Not entirely. It's more of a balancing between my rights as a property owner and the needs of the community and geographic imperatives (i.e., due to fault lines and soil types, the essential highway can ONLY be safely built if it runs through my living room).

I know that even if the state were to seize my property for some vital public works project, private enterprise would profit because some of the work would undoubtedly be contracted out to private companies. That's not where I have the problem. My issue is with the state using eminent domain to turn over my private property to another private owner based on the argument/assumption that the new private owner is going to do something more "useful" with the land than I am. Believing as I do that my home is an inviolate bastion of my liberty, to force me to surrender it would be like a rape.

If a developer wants to pay me and all my neighbors a bunch of money to buy our homes and then raze them to build the Starbucks and the condos, fine, maybe the developer will get lucky and there won't be any holdouts and they can build whatever they please and in so doing 'benefit' the community by bringing Frappuccinos and a finite amount of new housing to the neighborhood. Using the awesome power of eminent domain to secure my lot for commercial development is not, IMHO, what was intended in the Fifth Amendment.

[ManM]

I just don't see as much a distinction between a private owner who does something more "useful" with the land, and a public work that is supposed to do something more "useful" with the land. A good friend of mine was put out of business by one of these road building exercises, and I saw nothing fair about the process. Whether his land was taken for a road or for a Starbucks seems to me to be secondary to the point that he was put out of business so that something more "useful" could be put there. Why would a road through your home be any less of a rape than a Starbucks?

[maddog]

A public work is just that: for the benefit of the whole public. It is in the name of the public, and for a public purpose, that a public entity is granted the power of eminent domain. Back in the bad old days, when (nation-)states were sovereigns, and all land belonged to the monarch, the state could take your land for its sovereign reasons, and was not obliged to pay compensation. The protective difference built into the U.S. Constitution is that, if the sovereign takes your property, it may only do so (1) for a public purpose, and (2) with payment of just compensation for the taking.

#831

[ManM]

Originally Posted by maddog

A public work is just that: for the benefit of the whole public. It is in the name of the public, and for a public purpose, that a public entity is granted the power of eminent domain. Back in the bad old days, when (nation-)states were sovereigns, and all land belonged to the monarch, the state could take your land for its sovereign reasons, and was not obliged to pay compensation. The protective difference built into the U.S. Constitution is that, if the sovereign takes your property, it may only do so (1) for a public purpose, and (2) with payment of just compensation for the taking.

The problem is that a Starbucks can be justified as providing a public purpose: it provides jobs. So, one thing helps transportation, the other provides jobs. I'm trying to figure out why people get pissed off in one case, yet accept the other as if nothing is wrong. They both seem wrong to me.

[ms_ann_thrope]

I'm sorry that you don't see a difference between enabling hourly employment for a dozen baristas and improving transportation (which could includes such benefits as facilitating interstate commerce, increasing safety, reducing traffic, etc.).

Believe me, I don't WANT the goverment to build a road through my home, but I can see a lot more public benefit in that than if it was taken for private economic development.

[ImGod]

I'm going to have to side with ManM on this one. I don't see much difference either.

Highways are sometimes expanded for no reason other than there was money available. Urban sprawl is a function of highways. I say make it harder for cities to claim eminent domain and boot someone out. If it's in the public's best interest, they can make a claim against the property(s) and wait until the owner either moves or dies and take it then. There is no reason to kick them out.

The time frame argument doesn't work either. Most cities have been around for a long time. If the city failed to plan correctly in their development, or encroaches on people not in the city, it is their problem and not the property owner's. They can offer them more money to speed up the process, or wait until the owner leaves.

[ms_ann_thrope]

Originally Posted by ImGod

I'm going to have to side with ManM on this one. I don't see much difference either.

Highways are sometimes expanded for no reason other than there was money available. Urban sprawl is a function of highways. I say make it harder for cities to claim eminent domain and boot someone out. If it's in the public's best interest, they can make a claim against the property(s) and wait until the owner either moves or dies and take it then. There is no reason to kick them out.

The time frame argument doesn't work either. Most cities have been around for a long time. If the city failed to plan correctly in their development, or encroaches on people not in the city, it is their problem and not the property owner's. They can offer them more money to speed up the process, or wait until the owner leaves.

Perhaps I was unclear: I am no fan of eminent domain. Here are the last 12 words of the Fifth Amendment: "...nor shall private property be taken for public use, without just compensation." My opinion is that it's bad enough that private property can be taken by the government for public use, but it's part of the darn Constitution, so unless an amendment changes it, we've got no choice but to live with the concept. At least we're guaranteed "just compensation," for whatever that's worth.

THAT BEING SAID, I think it is utterly ridiculous to to expand the scope of the takings clause from "public use" to include government conversion of private property for private, commercial development that has some nebulous public benefit. When you and ManM take the position that there is no difference between your house being razed for a public work like a highway and your house being razed for a private enterprise like a Starbucks, what you're essentially doing is giving away/giving up more of your rights as a property owner than the Constitution says you have to. Your choice, of course, but I think it is important to distinguish between the two in order to preserve some modicum of protection for the property owner. Once we give away a right, it is very, very difficult to reinstate. Best not to go down the slippery slope in the first place.

Make sense?