http://www.family.org/cforum/news/a0041033.cfm

June 26, 2006

Bush Issues Executive Order on Eminent Domain

by Pete Winn, associate editor

Last Friday marked the anniversary of the Supreme Court's infamous Kelo decision.

It has been one year since the U.S. Supreme Court issued an opinion that shocked the country and attacked the fundamental American doctrine, "A man's home is his castle."

Now the backlash is under way.

President Bush marked the anniversary of the Kelo v. New London ( Conn.) decision by issuing an executive order barring the federal government from taking private land for someone else's private use.

Specifically, Bush's order said "it is the policy of the United States to protect the rights of Americans to their private property" 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."

Bruce Hausknecht, judicial analyst for Focus on the Family Action, said Bush's order specifically requires agencies that answer to the president to make sure, when they exercise eminent domain, that people's property is taken only for a public use, such as a road or airport, rather than what Kelo allows � the taking of private property for any use, including commercial development.

"Kelo interpreted the Fifth Amendment to allow state and local governments to condemn private property for the benefit of private developers," Hausknecht said, "to build privately owned improvements on that property for the hope of a public benefit, such as a higher tax base."

The ruling, cited by family advocates as an egregious example of judicial activism, sprung from a 1997 case in which the city of New London, Conn., allowed the New London Development Corp. to seize Susette Kelo's entire neighborhood for a shopping mall. Kelo and some of her neighbors sued � and lost.

Sen. John Cornyn, R-Texas, applauded Bush for taking executive action.

"The protection of homes and small businesses and other private property against government seizure or unreasonable government interference is a fundamental principle of American life and a distinctive aspect of our form of government," Cornyn said.

Cornyn has authored legislation � The Protection of Homes, Small Businesses, and Private Property Act (S. 1313) � which puts into federal law for the full government what Bush's order does for the executive branch. His bipartisan bill now has 31 Senate co-sponsors.

A House bill, H.R. 4128, passed the lower chamber with bipartisan support by a vote of 376-38 and is currently in the Senate Judiciary Committee. That bill would restrict federal economic-development funding to states where municipalities engage in eminent domain abuse.

"The Supreme Court's decision last year represented a radical departure from the decisions handed down interpreting that constitutional provision over the last 200 years, and the president's action was an important step toward righting that wrong," the Texas senator said. "But Congress must act soon."

Good news, bad news

The Kelo decision has brought both good news and bad news, according to Steve Anderson, a senior staff attorney for the Institute for Justice. The bad news is that Kelo opened up a floodgate of government property seizures.

"We did a study from 1998 to 2002, which showed more than 10,000 instances of eminent domain abuse around the country," Anderson told CitizenLink. "But in the last year, since Kelo, over 5,700 properties are being threatened or condemned for private development � that's nearly triple the yearly average."

The good news, he said, is that the ruling has unleashed a response from state legislatures and grassroots activists.

"The one thing the court got right is that states are free to pass laws that are more restrictive and pass laws that are more protective of their residents," he said. "We've seen that occur in about half the states. About 25 states have passed some kind of reform."

In addition, citizen-driven initiatives are being placed on the ballot in a number of states this fall, including California.

"We've seen an unprecedented grassroots rebellion because of this decision," Anderson said. "Quite frankly, it hits home."

It's ironic, Hausknecht said, that the anniversary of Kelo comes so close to July 4, America's Independence Day, because the Founding Fathers were very protective of private property in the Constitution.

"Property rights were near and dear to everything the Founders believed," he noted, "and part of the abuse of rights that England committed against America dealt directly with property rights."