Ilya Somin points out an important problem with the President’s Executive Order.
BTW: My post on Saturday, as I mentioned, was my initial “at first
glance” reading of the Executive Order (done in about 15 minutes).
Somin argues, and I agree, that the Order is undermined by the following language:
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.
The problem is the
“merely” language. According to the Order, it probably is o.k. to
take private property even if it is for economic development reasons as
long as it benefits the general public and doesn’t “merely” benefit
private parties. Even after Kelo, no governmental entity would
argue that a taking is merely to benefit a private party–they always
use the argument that a taking is for the benefit of the public.
In
fact, no governmental entity could argue that a taking was merely for
the benefit of a private party. This would violate the principle
that even the Supreme Court in Kelo argued still exists: The government
can’t seize private property from one private citizen for the purpose
of transferring it to another private citizen. Of course, for all
practical purposes, this principle, after the Kelo decision, is
dead–but when it comes to its stated reasons for taking property, this
principle for government is very much alive.
I also quickly can
identify another problem that exists–Section 3(d): Takings are allowed
for “preventing or mitigating a harmful use of land that constitutes a
threat to public health, safety, or the environment.” Notice the
word “preventing”–this means a harmful use doesn’t exist now but might
exist–how is this determined? This is the same problem that
exists here in NC–we allow for property to be seized that might become
blighted. Also, as pointed out by Roy, the use of the word “environment” can be problematic as well–could a taking be allowed to reduce CO2?
Bottom
Line: The Executive Order has serious problems, but “some” of the
language still can offer helpful guidance to define what a proper
“public use” should be.
Hat Tip: John Branch
