June 28, 2006

IJ Statement on Bush's Executive Order

By IJ Statement on Bush's Executive Order

The Institute for Justice has released this statement about President Bush's executive order about eminent domain:

Statement of Institute for Justice Regarding

Presidential Executive Order Restricting

Use of Eminent Domain by Federal Agencies

On Friday, June 23, 2006, President Bush issued an Executive Order forbidding federal government agencies from using eminent domain for private development.  The Executive Order is valuable in three ways:

1)  It acknowledges the damage done to the Constitution by the Supreme Court in its decision on June 23, 2005, in Kelo v. City of New London.

2)  It provides further pressure on the U.S. Senate to take action on H.R. 4128, the bill that passed the House in November 2005 that would sharply limit the use of federal money to support eminent domain for private parties.  H.R. 4128 has been languishing in the Senate Judiciary Committee for more than seven months.

3)  The Executive Order contains only a very limited exception for eliminating harmful or dangerous uses of land.  That limited exception is similar to the limited exception in H.R. 4128 and in the 2006 Appropriations Bill.  There has been significant pressure in the Senate to make a broad exception for so-called blighted areas.  Such an exception would swallow the rule and render any limits meaningless.  It is therefore important that the President's Order follows the more narrowly defined and objective model of H.R. 4128.  The Senate should follow this same model, rather than creating expansive exceptions.

The Executive Order thus makes an important symbolic contribution to the battle against eminent domain abuse, but its practical impact is limited because federal agencies have rarely if ever taken property for private development.  Also, the President does not have the power to forbid federal agencies from funding such takings by state and local governments.  Nor does the Executive Order increase the power of federal agencies in any way–those powers are created by statute.  It merely prevents federal agencies from interpreting their powers to allow condemnation for private development, if an agency was ever so inclined.

The Institute for Justice is pleased that President Bush, by issuing the Executive Order, has acknowledged the threat to home, business, church, and farm owners throughout the country. 

The President should continue to encourage the Senate to pass H.R. 4128 as soon as possible.

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