Opinions Differ On Bush Executive Order Limiting Eminent Domain


by Timothy Sandefur

Conservative Compendium notes differing opinions over the effectiveness of President Bush's executive order regarding eminent domain abuse, and concludes that "only time will tell" whether the executive order will make any differnce or not. But time is not necessary. The effectiveness (or lack thereof, rather) can be determined by the words of the document itself. The order applies only to federal agencies, which since the 1970s at least, have done little urban renewal involving eminent domain; nor does it explicitly forbid condemnations for economic development or redevelopment. It merely declares that the policy of the U.S. is not to take property for the private benefit of particular parties—something even the Kelo decision says. Without declaring that economic development is not a legitimate state interest, the Bush executive order cannot do anything to resolve the eminent domain situation. Time is not necessary to see that the order is meaningless as a legal matter.

In fact, as David Boaz points out at Cato's weblog,

If you don’t believe these churlish libertarians, you can listen to dedicated land-grabber, Douglas Kendall of the Community Rights Counsel (a private nonprofit organization formed to assist governments in their efforts to take their citizens’ property), who told the AP, “This order appears to apply to a null, or virtually null, set of government actions.” He noted with relief that the order did not include a ban on funding for state and local development projects that employ eminent domain.

And Peoria Pundit Bill Dennis rightly notes that "If Bush was really concerned about property rights, he could have easily barred Fed funds from this sort of project by including appropriate language in the executive order."