Executive Order: Protecting the Property Rights of the American People

The White House ^ | June 23, 2006 | Office of the press secretary

[DaveTesla]

Executive Order: Protecting the Property Rights of the American People

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:

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.

Sec. 2. Implementation. (a) The Attorney General shall:

(i) issue instructions to the heads of departments and agencies to implement the policy set forth in section 1 of this order; and

(ii) monitor takings by departments and agencies for compliance with the policy set forth in section 1 of this order.

(b) Heads of departments and agencies shall, to the extent permitted by law:

(i) comply with instructions issued under subsection (a)(i); and

(ii) provide to the Attorney General such information as the Attorney General determines necessary to carry out subsection (a)(ii).

Sec. 3. Specific Exclusions. Nothing in this order shall be construed to prohibit a taking of private property by the Federal Government, that otherwise complies with applicable law, for the purpose of:

(a) public ownership or exclusive use of the property by the public, such as for a public medical facility, roadway, park, forest, governmental office building, or military reservation;

(b) projects designated for public, common carrier, public transportation, or public utility use, including those for which a fee is assessed, that serve the general public and are subject to regulation by a governmental entity;

c) conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right;

(d) preventing or mitigating a harmful use of land that constitutes a threat to public health, safety, or the environment;

(e) acquiring abandoned property;

(f) quieting title to real property;

(g) acquiring ownership or use by a public utility;

(h) facilitating the disposal or exchange of Federal property; or

(i) meeting military, law enforcement, public safety, public transportation, or public health emergencies.

Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(c) This order shall be implemented in a manner consistent with Executive Order 12630 of March 15, 1988.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.

GEORGE W. BUSH

THE WHITE HOUSE,

June 23, 2006.

[hedgetrimmer]

Explain to me what authority a citizen has over a 'nongovernmental organization' or foreign agent? He cannot unelect them if they allow the roads to become dangerous or they try to stop us from using them.

[Diddle E. Squat]

So you are against the state taking private property for new roads and expanding roads? How else are they supposed to build roads? You do realize that there are a quarter million new residents added each year in the DFW to San Antonio area, so in effect another Houston or DFW will be added within the next 20 years. Not building or expanding roads is not a realistic option.

The private company is simply acting as an agent of the state. Just like they already do on construction projects.

I love how you selectively cut off the rest of the sentence when quoting me, which answered the question you then asked. Not sure exactly what point you were trying to make. Care to try again?

[gotribe]

Park? Forest? Government office building? There are enough of those already. How about an executive order giving back property previously taken by the government.

[Rembrandt]

"That's nice, but the real abusers are at the state and local levels!"

Moving this from a debate in the media to a written political environment was a very important first step. No, it's not a done deal yet, but it's a big first step.

I say kudo's to the Prez.

[Rembrandt]

"FedGov could withhold funding for state ED issues, but that's about it."

I certainly hope the Fed withholds funding for Washington state's and Massachusetts' ED issues; they both have severe erectile dysfunctions in state and federal positions!

[sinkspur]

Explain to me what authority a citizen has over a 'nongovernmental organization' or foreign agent? He cannot unelect them if they allow the roads to become dangerous or they try to stop us from using them.

Why would a foreign contractor who needs tolls to pay for his highway not let you use his highway?

You must be one of those guys who think China is just looking for an excuse to stop selling us their stuff.

[iluvgeorgie]

You hit the nail on the head, this is nothing more than another halfhearted attempt to appease 'the base'. A pitiful attempt, I might add.

My familiarity with takings law is somewhat limited. Sadly, the Supreme Court didn't have it wrong in all of the controversial cases. Our Constitution's protection of private property is limited. The text only mandates that the taking be "for public use," which by its plain terms does not require that the public own the condemned property, only that the public gets use out of it. So yes, as long as Uncle Sam justly compensates me, he can take my house to build a shopping mall. It is impossible to refute the notion that the public uses shopping malls (or hotels, restaurants, golf courses, etc.). Sometimes the Constitution allows things that really suck (and anyone who thinks otherwise is reading the document in a result-oriented fashion that suits themselves).

That said, there was a case in Hawaii I think in the 1990s. That one really did piss me off. The state decided that too few people owned too much of the land, so they sold it off to private parties. The Court's reasoning was that because members of the public were buying the homes, it was public use. That went WAY off the deep end and practically eviscerated "public use" of any meaning. Classic Robin Hood if you ask me. (Unless we're dumb enough to assume that these new homeowners opened their houses up for the public to just walk into and out of whenever they felt like it. Hey, some fraternities seem to operate that way.) In other words, the Court weakened what is already a weak protection against eminent domain.

Congress and Bush have no power to reinterpret the Constitution, however unfortunate some of its decisions may be. Also, I'm not too clear to what extent eminent domain falls in the executive realm versus the legislative realm, so if Bush orders anything that seems to preempt legislation, he might run afoul of separation of powers. It isn't clear that this order does a whole lot, but this may be a case where symbolism is (or comes close to being) about the most the president can do without overstepping his bounds. I think the major issue is how strong can an executive order on this issue be without violating the constitutional separation of powers doctrine. It's worth exploring further, and I'd love to hear some thoughts from any lawyer familiar with the interplay between takings law and separation of powers.

[justshutupandtakeit]

No reason they shouldn't. Xenophobic paranoia is no reason to change them.

[GOPJ]

Thank you, President Bush. You've set the example...

[JavaTheHutt]

This prohibits the feds from any takings for private parties or private interest.

Not if the federal agency in question already has been given the right to do so.

b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency or the head thereof; or...

Actually, I'm not a lawyer, but it appears that this EO isn't really worth the paper it's written on.

[KoRn]

"This prohibits the feds from any takings for private parties or private interest."

But this doesn't apply to local governments, who have been abusing the most. I'm to the point of believing a constitutional amendment is needed to protect private property.

[MarcusTulliusCicero]

In a political sense (i.e. putting the Administration on record as opposing Kelo) it makes sense. But, outside of the executive branch, it has no power, as it explicitly states. And even if the executive branch violates it's own policy, it still adds nothing to the arsenal of the property owner to challenge a claim of eminent domain. So, in the real world sense, I'm sorry, it's still toothless.

[sinkspur]

But this doesn't apply to local governments, who have been abusing the most. I'm to the point of believing a constitutional amendment is needed to protect private property.

Or you can elect a mayor and city council, or school board reps, who won't take private property every time a member of Sam Walton's family shows up.

[iluvgeorgie]

If the order gave property owners a cause of action (e.g. right to sue) for violations, Bush would be creating rights and essentially legislating. He can't do that. In at least that respect, it seems he has exercised his presidential authority as far as the Constitution allows.

[Diddle E. Squat]

Let me try once more. This EO provides new ammunition a court can use when the next case of econ dev. takings goes to court. When one of the courts eventually strikes down one of these takings cases the tooth will have bit.

[hedgetrimmer]

Explain to me what authority a citizen has over a 'nongovernmental organization'

[Sam Cree]

Thanks, W, but if we have really reached the point where our freedoms are protected by executive orders, which are double edged swords, rather than by the Constitution, then we are a very long ways down the road to serfdom.

Meanwhile, a major policy speech outlining the evils of eminent domain and urging action, would be even more welcome.

[KoRn]

"Or you can elect a mayor and city council, or school board reps, who won't take private property every time a member of Sam Walton's family shows up."

Very true, but those are an endangered species in our body politic. Just 4 years ago I saw a beautiful mansion get demolished and a super Wal-Mart is there today, I suppose the mansion was "condemned". Sure citizens can take action in many communities to prevent such things, but I believe we need an amendment to protect our private property from these politicians and others who would want to take away from us what is ours.

[WoofDog123]

publicly traded, privately owned by shareholders, is the usual meaning of 'public corporation.'

[IllumiNaughtyByNature]

Thank your for both ping and the info provided. I am moving just outside of Dallas in a couple of months and want to be a little more familiar with this project.