Monday, June 26, 2006

Bush Loves Him Some Kelo

C-Plus Augustus signed an executive order on "takings" related to Federal agencies, perhaps designed to set an internal policy against Kelo and thus appease his still flagging credibility with many conservatives, but Ilya Somin over at Volokh Conspiracy thinks there's more than meets the eye. The order says this:

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.

Seems a strident enough stand on Kelo. But is it really? Somin gets to the heart of the matter.

Read carefully, the order does not in fact bar condemnations that transfer property to other private parties for economic development. Instead, it permits them to continue so long as they are "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."

Unfortunately, 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. This is not a new pattern, but one that bedeviled takings litigation long before Kelo. Indeed, the New London authorities made such claims in Kelo itself and they were accepted by all nine Supreme Court justices, including the four dissenters, as well as by the Connecticut Supreme Court (including its three dissenters). This despite considerable evidence that the takings were instigated by the Pfizer Corporation, which at the time hoped to benefit from them. Not all the evidence of Pfizer's role was available at the time of the trial, but enough was submitted to demonstrate that Pfizer played a crucial role (e.g. - the head of a firm that helped prepare New London's development plan testifed that Pfizer was the "10,000 pound gorilla" behind the takings). Nonetheless, the courts accepted New London's claims that its officials acted in good faith, since they could have been intending to benefit the public as well as Pfizer.

Aha! What we probably have here is an executive order reinforcing Kelo. The whole problem with takings and economic development since day one has been one of definition. Everyone claims their project is "benefiting the general public." Pre-Kelo, the issue of the takings and whether it was allowed was one of quantifying what this "benefit" was supposed to be. Construction of a school? Affordable housing? A road? The ever-slippery "job creation?" Fighting that phantom menace "blight?" Kelo answered that question by stating all they had to do was prove that it would generate more tax revenue, which makes it just an issue of handing the property over to someone who can make more money there. Bush's Executive Order, for all its aspirational language about private property, does nothing to change this definition. And, since the definition set in Kelo is the problem in the first place, it solves nothing and does nothing. I think Somin is largely right too when he states the backlash isn't quite what people predicted, which is a shame because this is a serious issue in terms of both private property rights and social justice in urban America newest wave of economic redevelopment.