June 23rd was the anniversary of the Supreme Court’s infamous Kelo decision, allowing local governments to transfer property from one private owner to another so long as there is some perceived public benefit. And, of course, there always is some benefit; as Justice Sandra Day O’Connor wrote in dissent, “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory” — because in each such case the city would get more tax revenue, and the city council would regard that as a public benefit.
On the anniversary of the decision, homeowners Susette Kelo and Pasquale Cristofaro finally settled with the city of New London on the terms of their eviction.
Also on the anniversary, President Bush signed an executive order that, in the words of a Washington Post headline, “Limits Eminent-Domain Seizures.” The Post and the AP should have learned by now to be more skeptical of Bush administration claims. The executive order really does very little. It says the federal government will only take property from its owners “for the purpose of benefiting the general public.” But the Supreme Court has just said that virtually anything goes under that standard.
Cato author Timothy Sandefur says that the executive order likely means nothing, but it’s good that the president issued it anyway, considering that the administration didn’t file a brief in the Kelo case.
Cato author Ilya Somin disagrees, saying, “Bogus reform efforts such as this one create a danger that the public will be falsely persuaded that the problem has been solved.” And he agrees that “this language validates virtually any economic development condemnation that the feds might want to pursue. Officials can (and do) always claim that the goal of a taking is to benefit ‘the general public’ and not ‘merely’ the new owners.”
If you don’t believe these churlish libertarians, you can listen to dedicated land-grabber Douglas Kendall of the Community Rights Counsel (a private nonprofit organization formed to assist governments in their efforts to take their citizens’ property), who told the AP, “This order appears to apply to a null, or virtually null, set of government actions.” He noted with relief that the order did not include a ban on funding for state and local development projects that employ eminent domain.
So where’s the promised good news? Well, it may pale next to the news that Kelo and her neighbors are finally being forced out and the news that the Kelo decision opened the floodgates for more property seizures than ever. But it’s still good news that Cato has just published Cornerstone of Liberty: Property Rights in the 21st Century by Timothy Sandefur, the first post-Kelo book on why property rights matter, how they’re protected in the Constitution, how local governments and the Supreme Court are ignoring the Constitution, and how to protect property rights after Kelo. Buy it now. Read it. Send it to your legislator and your member of Congress. And keep an extra around to give to the next neighbor whose property is threatened with seizure.