Kelo developments: one year after
This report is another in a continuing series on the aftermath of Supreme Court decisions. This post involves developments on the one-year anniversary of Kelo v. New London.
President Bush on Friday took the initiative to curb seizures of private property by federal government agencies, limiting somewhat the impact of the Supreme Court’s controversial eminent domain decision in Kelo v. New London, allowing government to seize private property for use in private economic development. The President did not await new legislation from Congress; the Kelo decision has prompted a number of legislative proposals, such as H.R. 4128, which has passed the House but not the Senate. The President instead relied upon his constitutional powers as President, as well as federal laws.
His Executive Order (the text is here) declares it to be national government policy to limit “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.”
The Order directs the Attorney General to issue instructions to the heads of federal departments and agencies to monitor their “takings” and to ensure that private property is taken only for such public uses as a road, hospital, clinic, park, forest, federal office building, or military reservation. The final paragraph of the Order specifies that it does not create any right to sue the government over property seizures.
Meanwhile, in New London, Conn., the controversy that gave rise to the Court’s ruling appeared to be nearing its end, with an “agreement in principle” between the city and the last of the property-owners — including the lead plaintiff, Susette Kelo. The development is reported in the New London newspaper, the Day; the story is here. A statement by Connecticut Gov. Jodi Rell on the agreement can be found here. The governor commented: “It is fitting that we can make this announcement on the first anniversary of the Supreme Court ruling in Kelo.”
(Thanks to Howard Bashman of How Appealing blog for alerts to these developments, and for his continued reporting on the Kelo aftermath.)
Political not Significant
The usual reason that the States and Localities take properties for “public benefit” is for increased property taxes, and this does not apply to the Federal Government. Thus, though I think there is some agreement that the Government should not take land, except to benefit the Big Corporations, I doubt that this had been happening by the Federal Government.
The more important case is that which the legislatures are considering, i.e. not allowing Federal money to be used for local takings even if the locality determines it is in their benefit, but not for public use. Thus the Federal Legislature is trying to prevent the localities from doing what they decide to do by yet the power of the purse.
So the Presidential order seems to be mainly political not very significant.
Comment by mike liveright — June 24, 2006 @ 2:00 pm
The President’s Executive Order would not have prevented the takings in New London. Those takings were 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.” New London claimed that the general public benefited from a larger tax base.
If the federal government wanted to take privately owned land and sell it to a private company that would use the land in a way that would generate more income tax revenue than the former owners had generated, then the federal government could do so without violating the new executive order.
Furthermore, I think the President would like for us to believe that the Executive Order “ensure[s] that private property is taken only for such public uses as a road, hospital, clinic, park, forest, federal office building, or military reservation,” but there is nothing in the Executive Order that ensures the federal government will take private property only for such purposes.
Did the Executive Order change existing law or government policy in any way, or did it merely restate the current law and policy?
Comment by Michael Jenkins — June 24, 2006 @ 2:48 pm
Hasn’t the Supreme Court ruled that states and local entities can’t be sued in federal court because of the state immunity in the 11th Amendment except for constitutional violations and laws made in pursuant of its 14th amendment powers to enforce the fourteenth amendment? And the law allows just that (section 4) because the law is based on Congress’s spending power – not on the 14th amendment.
I know that the recent bankruptcy decision made the exception that Congress could override the 11th Amendment if it wanted to by expressly saying so, but that was a decision made by the four liberals and O’Connor. With Alito replacing O’Connor, it’s questionable how important that precedent is – especially since that precedent is at variance with several decades of 11th Amendment law since the Burger court. And Alito has already struck down laws (when he was on the appeals court) based on the 11th amendment eg the federal law regulating how states deal with pregnant women – this ruling was overriden later by the Supreme Court.
Comment by Dan the Man — June 24, 2006 @ 7:03 pm
The Day article link doesn’t seem to work.
Comment by Joe — June 25, 2006 @ 1:23 pm
Thanks for the link fix.
Overall, I wish more time was spent keeping up to date important rulings … they sadly have a “one day” flavor to them all too often, with even certain legal commentators not keeping track with the aftermath.
Both additional doctrinal nuances and human interest value would be provided in various cases with updates like this Kelo matter.
Comment by Joe — June 28, 2006 @ 2:04 am