The Kelo Decision and President Bush

Although the American people are overwhelming outraged by the recent eminent domain decision of the Supreme Court (Kelo vs. New London), and while many government entities have passed legislation and regulations to minimize its impact, the rapacious takeovers by private developers in New London and Riviera Beach are proceeding at full speed. It appears that nothing can be done to save the citizens of these communities from the legal theft of their property, and probably only a revisiting of this decision by the Supreme Court can save the rest of us from this trashing of a basic American right to the enjoyment of one’s own home or place of business.

I want to repeat a comment I made in a column earlier this year after Judge Alito was confirmed:

“The problem is that the elevation of Justice Alito to the Supreme Court is not, in itself, enough of a change to rectify the situation. Remember that the justices who voted in favor of New London were: Stevens, Breyer, Ginsburg, Kennedy and Souter – all liberal judges. Those voting against were O’Connor, a swing judge, and justices Rehnquist, Scalia and Thomas – all conservative judges. Chief Justice Roberts has replaced Rehnquist, and Justice Alito has replaced O’Connor. This means that the balance on the Kelo case probably has not changed; we need another conservative justice to overturn.

What this really means is that conservatives across the country must keep working and keep contributing money so that the Senate remains in Republican hands this year, and to avoid another filibuster, elect even more Republicans than we now have. Then we have to hope that President Bush gets an opportunity to appoint another justice who is a strict constructionist.” From Sea to Shining Sea

I want also to point out that we learned this week just where President Bush stands on the Kelo decision. He issued an executive order that forbids the federal government from participating in schemes of this nature that transfer private property to other private ownership using the power of eminent domain.

For Immediate Release
Office of the Press Secretary
June 23, 2006

Executive Order: Protecting the Property Rights of the American People
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:
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.

Sec. 2. Implementation. (a) The Attorney General shall:
(i) issue instructions to the heads of departments and agencies to implement the policy set forth in section 1 of this order; and
(ii) monitor takings by departments and agencies for compliance with the policy set forth in section 1 of this order.
(b) Heads of departments and agencies shall, to the extent permitted by law:
(i) comply with instructions issued under subsection (a)(i); and
(ii) provide to the Attorney General such information as the Attorney General determines necessary to carry out subsection (a)(ii).

Sec. 3. Specific Exclusions. Nothing in this order shall be construed to prohibit a taking of private property by the Federal Government, that otherwise complies with applicable law, for the purpose of:
(a) public ownership or exclusive use of the property by the public, such as for a public medical facility, roadway, park, forest, governmental office building, or military reservation;
(b) projects designated for public, common carrier, public transportation, or public utility use, including those for which a fee is assessed, that serve the general public and are subject to regulation by a governmental entity;
c) conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right;
(d) preventing or mitigating a harmful use of land that constitutes a threat to public health, safety, or the environment;
(e) acquiring abandoned property;
(f) quieting title to real property;
(g) acquiring ownership or use by a public utility;
(h) facilitating the disposal or exchange of Federal property; or
(i) meeting military, law enforcement, public safety, public transportation, or public health emergencies.

Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(c) This order shall be implemented in a manner consistent with Executive Order 12630 of March 15, 1988.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.

GEORGE W. BUSH
THE WHITE HOUSE,
June 23, 2006.