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In my post on President Bush’s order claiming to limit eminent domain, I pointed out that the opinions of Daren Bakst at the John Locke Foundation and Ilya Somin at Volokh Conspiracy were in apparent disagreement. But now Bakst has taken a closer look and largely agrees with Somin’s skepticism.

Somin argues, and I agree, that the Order is undermined by the following language:

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.

The problem is the “merely” language. According to the Order, it probably is o.k. to take private property even if it is for economic development reasons as long as it benefits the general public and doesn’t “merely” benefit private parties. Even after Kelo, no governmental entity would argue that a taking is merely to benefit a private party–they always use the argument that a taking is for the benefit of the public.

At this point legal opinion seems fairly strong that the order will have little to no effect on limiting eminent domain seizures.

eminent domain George W. Bush property rights