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George W. Bush Archive

Monday

26

June 2006

0

COMMENTS

Updating The Eminent Domain Executive Order

Written by , Posted in Government Meddling

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.

Sunday

25

June 2006

0

COMMENTS

Opinions Differ On Bush Executive Order Limiting Eminent Domain

Written by , Posted in Government Meddling

On the one-year anniversary of the controversial Kelo decision, President Bush issued an executive order that appears to limit eminent domain takings to only situations of public use.

Daren Bakst at the John Locke Foundation says it is “very well written” and adds that it “clearly only allows for the taking of truly “blighted” properties” and “that private property should not be seized for a private party’s “use” of the property (not just “ownership” of property).”

Ilya Somin at the Volokh Conspiracy has a different take. According to him, “the order does not in fact bar condemnations that transfer property to other private parties for economic development.” He concludes, “this language validates virtually any economic development condemnation that the feds might want to pursue.”

Which of these differing legal opinions is correct?