New Executive Order Falls Short


by James Burling

The Bush Administration celebrated the Kelo anniversary by issuing a Takings Executive Order.   It is supposed to prevent Kelo type takings by the Federal Government.  While it’s a nice gesture, and the White House deserves some credit for recognizing that the base is restless and that there is growing discontent over eminent domain abuse, the EO falls short of engendering any meaningful reform.

The EO falls short for a number of reasons. First it doesn't define "public use" except to say in Section I that takings shall be only for "public use." But so does the Constitution–which hasn't stopped the Supreme Court from countenancing A to B private transfers for over 50 years, culminating with the taking of private homes in Kelo.

Second, there is an exception for "health, safety and the environment," a decidedly mixed bag. At least this doesn’t include the progressive favorite of "public welfare." But public health and safety is still a rather loose term. My admiration for the creativity of condemning authorities gives me little hope that abuses in the name of health, safety and the environment will not occur.

Third, the EO stills allows unbridled eminent domain takings for a wide variety of federal purposes, such as National Parks, that which may be for "public use," but nevertheless still have serious adverse consequences for private landowners. In a nation where the federal government owns over one-third of the nation’s land mass, and where park maintenance budgets are already unfunded, the wisdom of acquiring more land for National Parks is questionable–especially when the National Park Service has been accused of its own litany of repeated injuries and usurpations. As one example, see this article in last week’s Downeast Coastal Press where Erich Veyhl describes the abuse of landowners in Acadia National Park.

Fourth, the requirement that property the taken property be "available for use by the general public as of right" is nice, but it wouldn't take a genius to see though this. Heck, even I can figure out a way to get around this. One could simply add a condition to the next outdoor shopping center bought with redevelopment dollars. The condition would simply say that the public has a "right" to access the mall for shopping purposes during regular business hours.

If the mall is large enough, we already know that the U.S. Supreme Court has said the Constitution doesn't prevent a state from forcing a shopping center to allow the public to exercise free speech rights on private property.  See PruneYard Shopping Center v. Robins. So there is already some public right to access large shopping centers in some states a la Pruneyard and the "available for use by the general public" language in the EO will be of little help.  Moreover, the Federal Government usually is not in the business of building shopping centers. Local redevelopment agencies are.

Which leads to the fifth difficulty here. It proscribes the federal government from certain takings, but it is not clear how this is implicated when local entities do the taking with federal funds. Is this a proscribed taking by the federal government or not? To clarify this, it would be helpful if an affected landowner could go to the court and use the EO as a defense. But that leads to the next shortcoming.

Sixth, the new EO falls into the same error made in President Reagan’s Executive Order 12630 on regulatory takings. That EO required federal agencies to assess the "takings implications" of any major federal action. But EO 12360 had no enforcement mechanism and it became a toothless tiger. Agencies would issue pro forma "no take" statements and forget about the whole Constitution thing.

Now, section 4(c) says the new EO will be implemented in the same manner as EO 12630. But we know from experience that landowners were absolutely precluded from using EO 12630 as a defense because it expressly eschewed providing any cause of action for its violation. We once tried to argue that EO 12630 was implicated by the Administrative Procedures Act (just as NEPA lawsuit standing is based not on NEPA but the APA). That gambit was vigorously opposed by Justice and it failed whenever tried.

Just in case the flacidity of the new EO is not plain enough from its incorporation of EO 12630, Section 4(d) of the new EO makes it explicit that there are no remedies under the APA.  So it looks like a condemnee will be hard pressed to use the new EO as a defense against a new private taking.  That means we'll have to rely on the agency doing the taking. 

Now if President Bush were really serious about this, He would do something a bit more substantive, like prod Congress to pass some meaningful reforms. Or, He would make anti-Kelo a plank in his judicial nomination process. Or, His EO would be longer on substance and shorter on rhetoric.

My suspicion is that the EO started out well enough in a back office in the White House but by the time the lawyers at Justice got through with it, it was emasculated. Justice Department lawyers have sworn a blood oath to uphold and defend the power and fiscal integrity of the United States. With the exception of some of the takings cases of 1987, Justice and the White House has been on the wrong side of every property rights case before the United States Supreme Court and virtually every case in the lower courts. Why should things change now?