Finally, the next president could strengthen President Bush’s June 2006 executive order on eminent domain, which forbade federal agencies from initiating condemnations intended to “merely . . . advance[e] the economic interest of private parties.” Unfortunately, Bush’s order did not actually prevent any economic-development takings because government officials can always argue that their goal is to benefit the general public. A new and stronger executive order would have limited impact. But it would send a valuable signal of presidential resolve to protect property rights.
Some may assume that presidential action is unnecessary because the problem has already been solved by the legislative backlash against Kelo.
Forty-two states have indeed passed legislation seeking to curb eminent-domain authority. However, the majority of the new laws are likely to be ineffective. California, New York, New Jersey, and Texas are among the major states that have enacted purely cosmetic reforms or none at all.
Legislators have found many ways to produce bills that appear to protect property rights without actually doing so. The most common tactic is that of allowing economic-development condemnations to continue under the guise of alleviating “blight.” Many states define “blight” so broadly that almost any neighborhood qualifies.
Widespread ignorance probably plays the key role in stymieing legislative reform of the kind voters want. Much specialized knowledge is required to tell the difference between an effective “anti-Kelo” bill and one that is just for show. Most voters lack the ability and the incentive to scrutinize such details closely. A recent Saint Consulting Group survey showed that only 21 percent of Americans know whether their state has enacted eminent-domain-reform legislation since Kelo, and only 13 percent know whether their state’s legislation is likely to be effective or not. Such ignorance makes it easy for state officials to pass off cosmetic legislation as genuine “reform.”
The next president should put the protection of property rights on his or her agenda. The recent Missouri and New York cases underscore the need for action.
– Ilya Somin is an assistant professor of law at George Mason University and an adjunct scholar at the Cato Institute. His amicus brief in the Kelo case was cited by the Supreme Court in its opinion.