Kelo's Recent Birthday

Because of some recent news items, and because it is the one-year anniversary of the Supreme Courts already infamous Kelo decision, I have been reading a lot of items on Eminent Domain lately. Here is a run-down of several of the more worthwhile ones.

On June 8th Tim Sandefur wrote a brief piece for Cato, The Pain of Eminent Domain. A few highlights:

• Of the 16 states that have acted since Kelo was decided, only six -- South Dakota, Georgia, Indiana, Pennsylvania, Minnesota and Florida -- have imposed meaningful restraints on government power. Other states have either done nothing or have enacted laws so riddled with loopholes that they allow government to seize whatever property they consider "blighted."
• For example, in Alabama where Gov. Bob Riley declared his state the leader of the post-Kelo "property rights revolt", the new law there prohibits government from taking property merely for economic development, but that restriction does not apply to property that is declared 'blighted'. Blight is defined as "buildings ... which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals or welfare of the community." Under such vague standards, virtually any neighborhood can be declared a blight, and any home or business located there can be seized and given to developers.
• Government routinely causes "blight." By subsidizing idleness, failing to protect property rights and stifling job creation through burdensome regulations and taxation, government often chokes economic growth. And its anti-growth policies sometimes make it prohibitively expensive to construct new housing anywhere but on land already owned by someone else. There's something amiss when developers find it easier to cannibalize existing owners than to build new homes or shops on vacant land.

Also on June 8th, John Charles wrote a short piece for Capitalism Magazine, Eminent Domain is Never the Solution. In it he notes a current case in Portland, Oregon, where Portland City Commissioner Randy Leonard wants the government to use its power of eminent domain to take property from one party and give it to another so they can build an upscale supermarket. He then notes an alternative to Eminent Domain:

In fact, there are other ways to improve neighborhoods and increase property values. Throughout the 20th century, St. Louis revitalized some of its worst neighborhoods by transferring control of streets to local homeowners. In 1974 the residents of one deteriorating neighborhood formed a residential association and assumed management responsibility for the primary boulevard. They raised $40,000 to erect a gate that partially closed the street, giving owners more control. A block watch was started, crime decreased, and the association borrowed funds to improve the street and housing. The result was that property values doubled.

Then on June 23, President Bush signed an Executive Order entitled "Protecting the Property Rights of the American People." That is a good thing, I guess. It starts by saying "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."

That sounds a little vague to me still -- "for the purpose of benefiting the general public" could be easily stretched to include all kinds of things. Is it a "benefit of the general public" that local government have more tax revenue to spend on public projects? Or to allow for a lowering of everyone's propery tax rates? Well, everyone who still has their property that is.

And in legal matters I always pay close attention when I hear the word "merely" inserted. So if some alternate use would be mostly for the benefit of some other private individual, corporation, developers, or whoever, but also has some minor "public use" benefit, then this EO seems to just nod and smile and say A-OK to it.

Later in the EO there are nine exclusions listed, many of which are not surprising -- they allow for the traditional, pre-Kelo uses of Eminent Domain for roads, parks, government buildings, and so on (which I am also against, but that is an argument for a different day). But the last one is again quite vague: "meeting military, law enforcement, public safety, public transportation, or public health emergencies."

Again, whenever I see the word "emergency" used in politics, I pay close attention. It wouldn't take too many dishonest syllogisms for a politician to argue that the government should transfer your property to somone else, so that they can build something else on it, so that revenues from property taxes will go up, so that they can then spend on... public health "emergencies". Afterall, they can't fight public health problems without tax revenue. Or they could make the case that the lack of a good grocery store in a particular neighborhood constitutes a public health emergency for the people in that area... hence, you're gonna need to move on friend.

And ditto for "public safety". No doubt some amount of tortured logic could be used to argue that public safety would be improved by taking Joe's home and plot and giving it Jim's corporation to create jobs, so that people in the neighborhood won't be tempted to resort to crime... thereby improving public safety.

I'm not claiming that Mr. Bush purposely kept certain phrases vague, or that he hopes words like "public health" or "public safety" would be used in that way. Quite the opposite, I assume. But the words are vague nonetheless.

On top of all of that, if he really wanted to make a strong stand on the Kelo decision, he should have done more. The Federal government isn't the major player in such Eminent Domain cases anyway, so passing this EO won't have a huge effect (or so I've read). What could have a bigger impact would be to mandate, or push for legislation that mandates, that no federal funds can be given for such projects initiated by local or state governments.

Here are others who make essentially the same criticisms as the above: David Boaz of Cato here, and then here, Ilya Somin here, and Tim Sandefur here.

And if you aren't yet as skeptical of the value of Bush's EO as I am, read this post from Radley Balko, who notes: "Back in 2004, when Kelo was pending before the Supreme Court, the Bush administration not only refused to file an amicus brief on behalf of the property owners, but was actually on the verge of filing a brief on behalf of the land-seizing local governments."

Ouch! He then goes on to provide an amazing quote from Clint Bolick, an attorney for the Institute for Justice who represented Kelo in the big case. Good stuff!