Bush Issues Anti Kelo Executive Order.
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Mongo the Mutterer
Member
Looks like the Fed only, but could be a start.
I wonder if this will apply to Federally funded programs, cost sharing, etc. that comes to the States and Locals. That may effectively gut Kelo...
'Card
Member
Only read through it once, but it looks like Bush made it as strong as possible given the limits of Presidential authority. Naturally it won't change the government's ability to take land for "the public good", but it will certainly impact Kelo-type situations where it was for commercial purposes. Setting the law back to a pre-Kelo state, basically.
Looks like George did a good thing here. Gotta hand it to him.
Looks like George did a good thing here. Gotta hand it to him.
I guess we will have to see.
Anyway, I had to look this up. Here is what an exectuive order by the president is.
http://www.thisnation.com/question/040.html
What is an Executive Order?
From time to time I hear that President Bush has issued an Executive Order establishing this policy or that. What is an Executive Order? Where does the President get the authority to issue them? Is there any way to reverse an Executive Order?
"Stroke of the pen. Law of the Land. Kinda cool."
Paul Begala, former Clinton advisor, The New York Times, July 5, 1998
"We've switched the rules of the game. We're not trying to do anything legislatively."
Interior Secretary Bruce Babbitt, The Washington Times, June 14, 1999
Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Executive Orders are generally used to direct federal agencies and officials in their execution of congressionally established laws or policies. However, in many instances they have been used to guide agencies in directions contrary to congressional intent.
Not all EOs are created equal. Proclamations, for example, are a special type of Executive Order that are generally ceremonial or symbolic, such as when the President declares National Take Your Child To Work Day. Another subset of Executive Orders are those concerned with national security or defense issues. These have generally been known as National Security Directives. Under the Clinton Administration, they have been termed "Presidential Decision Directives."
Executive Orders do not require Congressional approval to take effect but they have the same legal weight as laws passed by Congress. The President's source of authority to issue Executive Orders can be found in the Article II, Section 1 of the Constitution which grants to the President the "executive Power." Section 3 of Article II further directs the President to "take Care that the Laws be faithfully executed." To implement or execute the laws of the land, Presidents give direction and guidance to Executive Branch agencies and departments, often in the form of Executive Orders.
A Brief History and Examples
Executive Orders have been used by every chief executive since the time of George Washington. Most of these directives were unpublished and were only seen by the agencies involved. In the early 1900s, the State Department began numbering them; there are now over 13,000 numbered orders. Orders were retroactively numbered going back to 1862 when President Lincoln suspended the writ of habeas corpus and issued the Emancipation Proclamation by Executive Order. There are also many other Executive Orders that have not been numbered because they have been lost due to bad record-keeping. Such is not the problem today. All new Executive Orders are easily accessible (see below).
Many important policy changes have occurred through Executive Orders. Harry Truman integrated the armed forces under Executive Order. President Eisenhower used an EO to desegregate schools. Presidents Kennedy and Johnson used them to bar racial discrimination in federal housing, hiring, and contracting. President Reagan used an EO to bar the use of federal funds for advocating abortion. President Clinton reversed this order when he came into office.
President Clinton has come under fire for using the EO as a way to make policy without consulting the Republican Congress (see the quotes at the beginning of this article). Clinton has signed over 300 EOs since 1992. In one case, he designated 1.7 million acres of Southern Utah as the Grant Staircase - Escalante National Monument. He also designated a system of American Heritage Rivers and even fought a war with Yugoslavia under Executive Order.
Controversy
Executive Orders are controversial because they allow the President to make major decisions, even law, without the consent of Congress. This, of course, runs against the general logic of the Constitution -- that no one should have power to act unilaterally. Nevertheless, Congress often gives the President considerable leeway in implementing and administering federal law and programs. Sometimes, Congress cannot agree exactly how to implement a law or program. In effect, this leaves the decision to the federal agencies involved and the President that stands at their head. When Congress fails to spell out in detail how a law is to be executed, it leaves the door open for the President to provide those details in the form of Executive Orders.
Congressional Recourse
If Congress does not like what the executive branch is doing, it has two main options. First, it may rewrite or amend a previous law, or spell it out in greater detail how the Executive Branch must act. Of course, the President has the right to veto the bill if he disagrees with it, so, in practice, a 2/3 majority if often required to override an Executive Order.
Congress is less likely to challenge EOs that deal with foreign policy, national defense, or the implementation and negotiation of treaties, as these are powers granted largely to the President by the Constitution. As the Commander-in-Chief of the armed forces, the President is also considered the nation's "Chief Diplomat." In fact, given national security concerns, some defense or security related EOs (often called National Security Directives or Presidential Decision Directives) are not made public.
In addition to congressional recourse, Executive Orders can be challenged in court, usually on the grounds that the Order deviates from "congressional intent" or exceeds the President's constitutional powers. In one such notable instance, President Harry Truman, was rebuked by the Supreme Court for overstepping the bounds of presidential authority. After World War II, Truman seized control of steel mills across the nation in an effort to settle labor disputes. In response to a challenge of this action, the Supreme Court ruled that the seizure was unconstitutional and exceeded presidential powers because neither the Constitution or any statute authorized the President to seize private businesses to settle labor disputes. For the most part, however, the Court has been fairly tolerant of wide range of executive actions.
Contributing Author: Jeffrey C. Fox, Catawba College
Anyway, I had to look this up. Here is what an exectuive order by the president is.
http://www.thisnation.com/question/040.html
What is an Executive Order?
From time to time I hear that President Bush has issued an Executive Order establishing this policy or that. What is an Executive Order? Where does the President get the authority to issue them? Is there any way to reverse an Executive Order?
"Stroke of the pen. Law of the Land. Kinda cool."
Paul Begala, former Clinton advisor, The New York Times, July 5, 1998
"We've switched the rules of the game. We're not trying to do anything legislatively."
Interior Secretary Bruce Babbitt, The Washington Times, June 14, 1999
Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Executive Orders are generally used to direct federal agencies and officials in their execution of congressionally established laws or policies. However, in many instances they have been used to guide agencies in directions contrary to congressional intent.
Not all EOs are created equal. Proclamations, for example, are a special type of Executive Order that are generally ceremonial or symbolic, such as when the President declares National Take Your Child To Work Day. Another subset of Executive Orders are those concerned with national security or defense issues. These have generally been known as National Security Directives. Under the Clinton Administration, they have been termed "Presidential Decision Directives."
Executive Orders do not require Congressional approval to take effect but they have the same legal weight as laws passed by Congress. The President's source of authority to issue Executive Orders can be found in the Article II, Section 1 of the Constitution which grants to the President the "executive Power." Section 3 of Article II further directs the President to "take Care that the Laws be faithfully executed." To implement or execute the laws of the land, Presidents give direction and guidance to Executive Branch agencies and departments, often in the form of Executive Orders.
A Brief History and Examples
Executive Orders have been used by every chief executive since the time of George Washington. Most of these directives were unpublished and were only seen by the agencies involved. In the early 1900s, the State Department began numbering them; there are now over 13,000 numbered orders. Orders were retroactively numbered going back to 1862 when President Lincoln suspended the writ of habeas corpus and issued the Emancipation Proclamation by Executive Order. There are also many other Executive Orders that have not been numbered because they have been lost due to bad record-keeping. Such is not the problem today. All new Executive Orders are easily accessible (see below).
Many important policy changes have occurred through Executive Orders. Harry Truman integrated the armed forces under Executive Order. President Eisenhower used an EO to desegregate schools. Presidents Kennedy and Johnson used them to bar racial discrimination in federal housing, hiring, and contracting. President Reagan used an EO to bar the use of federal funds for advocating abortion. President Clinton reversed this order when he came into office.
President Clinton has come under fire for using the EO as a way to make policy without consulting the Republican Congress (see the quotes at the beginning of this article). Clinton has signed over 300 EOs since 1992. In one case, he designated 1.7 million acres of Southern Utah as the Grant Staircase - Escalante National Monument. He also designated a system of American Heritage Rivers and even fought a war with Yugoslavia under Executive Order.
Controversy
Executive Orders are controversial because they allow the President to make major decisions, even law, without the consent of Congress. This, of course, runs against the general logic of the Constitution -- that no one should have power to act unilaterally. Nevertheless, Congress often gives the President considerable leeway in implementing and administering federal law and programs. Sometimes, Congress cannot agree exactly how to implement a law or program. In effect, this leaves the decision to the federal agencies involved and the President that stands at their head. When Congress fails to spell out in detail how a law is to be executed, it leaves the door open for the President to provide those details in the form of Executive Orders.
Congressional Recourse
If Congress does not like what the executive branch is doing, it has two main options. First, it may rewrite or amend a previous law, or spell it out in greater detail how the Executive Branch must act. Of course, the President has the right to veto the bill if he disagrees with it, so, in practice, a 2/3 majority if often required to override an Executive Order.
Congress is less likely to challenge EOs that deal with foreign policy, national defense, or the implementation and negotiation of treaties, as these are powers granted largely to the President by the Constitution. As the Commander-in-Chief of the armed forces, the President is also considered the nation's "Chief Diplomat." In fact, given national security concerns, some defense or security related EOs (often called National Security Directives or Presidential Decision Directives) are not made public.
In addition to congressional recourse, Executive Orders can be challenged in court, usually on the grounds that the Order deviates from "congressional intent" or exceeds the President's constitutional powers. In one such notable instance, President Harry Truman, was rebuked by the Supreme Court for overstepping the bounds of presidential authority. After World War II, Truman seized control of steel mills across the nation in an effort to settle labor disputes. In response to a challenge of this action, the Supreme Court ruled that the seizure was unconstitutional and exceeded presidential powers because neither the Constitution or any statute authorized the President to seize private businesses to settle labor disputes. For the most part, however, the Court has been fairly tolerant of wide range of executive actions.
Contributing Author: Jeffrey C. Fox, Catawba College
beerslurpy
member
You have been snookered.
Even the Kelo taking was justifiable under these grounds. Any taking can be said to have at least some benefit to the general public. Note the choice of the word merely- takings that advance the economic interest of private parties are still allowed but only under the laughable condition that they fabricate a way in which the general public is benefitted in giving the confiscated property to another private party.
This is the argument under which the Government in Kelo advanced- the issue in Kelo was whether such attenuated "public uses" as tax revenue generation could be used to justify what were essentially property transfers from private party A to B. This executive order fails to address this, in fact embraces it and is thus a PRO Kelo executive order.
Even the Kelo taking was justifiable under these grounds. Any taking can be said to have at least some benefit to the general public. Note the choice of the word merely- takings that advance the economic interest of private parties are still allowed but only under the laughable condition that they fabricate a way in which the general public is benefitted in giving the confiscated property to another private party.
This is the argument under which the Government in Kelo advanced- the issue in Kelo was whether such attenuated "public uses" as tax revenue generation could be used to justify what were essentially property transfers from private party A to B. This executive order fails to address this, in fact embraces it and is thus a PRO Kelo executive order.
DKSuddeth
Member
what a propagandic piece of BS executive order....look at all the subs to this crap!!! This EO doesn't do anything more than shout to the public that the President is defending the right to private property except in all the circumstances that have already had eminent domain proceedings ruled in our (the gov) favor.
Lone_Gunman
Member
Beerslurpy hit the nail on the head with his assessment.
The word "merely" is the key to the meaninglessness of this executive order. They will always be able to spin some "common good" out of most anything.
The word "merely" is the key to the meaninglessness of this executive order. They will always be able to spin some "common good" out of most anything.
Aguila Blanca
Member
No, beerslurpy missed it by the proverbial country mile. The Kelo case was specifically about "economic improvement," and the land that is being taken in New London under eminent domain is to be turned over directly to a for-profit, private developer. That is precisely what this Executive Order prohibits.
beerslurpy
member
Only if they cant show a benefit to the public. Which they can, in the form of increased tax revenue, decreased urban blight and countless other excuses. Those are considered public benefits. Economic development is considered a public benefit.
The executive order forbids takings that MERELY benefit a private party- if they also benefit the public in any way, they are still perfectly OK. If you can't see that, there isnt anything I can say to help you- this is simple reading comprehension.
The executive order forbids takings that MERELY benefit a private party- if they also benefit the public in any way, they are still perfectly OK. If you can't see that, there isnt anything I can say to help you- this is simple reading comprehension.
I don't think it means much. The order says that private property won't be taken just to advance the economic interests of private parties. It still allows the taking of property for public benefit.
The states can still say they are using eminent domain to take private property to be transfered to shopping center developers because the development of property will benefit the public through improved economic activity, etc.
It's just Bush making a cynical attempt to appear to be conservative.
K
The states can still say they are using eminent domain to take private property to be transfered to shopping center developers because the development of property will benefit the public through improved economic activity, etc.
It's just Bush making a cynical attempt to appear to be conservative.
K
longeyes
member
The mystery to me is why Bush bothered. Oh, yeah, a political gesture that is pretty in pink. As important as this case is it needs to be revisited by SCOTUS.
mordechaianiliewicz
Member
While I have to give Bush praise for attempting to clear this up, it doesn't stop abuse of the government powers of eminent domain. Regularly, the government confiscates property in a totally unconstitutional matter, and this won't stop with his ruling. It will simply stop the exact kind of case which kelo was.
As for the government confiscating land for a public road, well folks, NAFTA super highway ain't goin' no where!
Bush hasn't suddenly decided to help his country. He is still solidly pro-corporate, and anti-American.
As for the government confiscating land for a public road, well folks, NAFTA super highway ain't goin' no where!
Bush hasn't suddenly decided to help his country. He is still solidly pro-corporate, and anti-American.
beerslurpy
member
Bush deserves zero praise. He tried to trick us by issuing an order that actually does nothing. Just like his efforts on the border.
Waitone
Member
Wow! For a while there I was worried about judicial dictatorship. Thank goodness the signative of the executive can override the decision of a bank of despots. For a while there I was worried about life, liberty, and property being at the whim of a panel of lawyers. Thank goodness one man can fix all our problems. 
k_semler
member
From Section 4, Clause D:
(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.
Nothing changes at all. It's just political posturing that holds about as much water as John Kerry's purple hearts, or his "I voted for the war before I voted against the war".
(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.
Nothing changes at all. It's just political posturing that holds about as much water as John Kerry's purple hearts, or his "I voted for the war before I voted against the war".
Thin Black Line
Member
So as long as the gov't "buys" it first, then it can be "conveyed" later.
Doesn't seem like too much of a change.
Couldn't a city gov't just issue bonds to help finance their initial buy of
the proprerty and then hold a subsequent auction? Or, why even bother
with the auction if the bond holders are the delevopers to begin with
--after all they would make a decent return on the bonds and the city
could still "hire" thru so-called "sealed bids" the developer's contruction
companies to do the project that will be "available for use by the general
public." Shopping mall, here we come
Lone_Gunman
Member
The only reason I can think of is that there are elections this year and the Republicans are scared to death that they are going to be voted out in droves.
Igloodude
Member
It's called pandering to the libertarian wing of the party. They don't even know how to fake it, whereas they've gotten pretty good at pandering to the social conservative wing with a gay marriage ban hullaballoo every couple years.
geekWithA.45
Moderator Emeritus
Sigh.
Executive Orders, by their very nature are inherently limited in their scope. For the most part, they pertain pretty strictly to the activities of the deparments of the executive branch, which makes this, at best, a partial fix, leaving a great deal undone.
It does not speak to the activities of local and state governments, where most takings cases take place.
What it does do, however, is create an INCONSISTENCY, and therefore a tension between the various levels of governments approaches to takings, and sets up an eventual deeper fix.
Nonetheless, Exec orders like this set the tone for that which follows, and establishes a leadership position in a subject, which can potentially have a deep effect further down the road.
The two best examples I can think of are the Emancipation Proclamation, which applied only to slaves in territories that Lincoln did not have control of, and the orders that racially integrated the military while the South still practiced segregation as a matter of normal policy.
Like others, this section also gave me pause:
I think beerslurpy's interpretation is a fair representation of our cynic's faction.
Me, reading it in the light of what is normally accepted as public use in takings cases, I think that the wording is carefully crafted such that -tangential- benefit to private parties, (for example, the wages of the guys who build the roads over the land condemned consistently with normal public use takings) remains ok, but that this is ruled out as -a primary effect-.
This primary effect at the heart of the Kelo argument is that the public recieves a tangential benefit in the form of enhanced taxes -as a consequence- of the advancing of the economic interests of third parties.
As beerslurpy points out, so long as any economic development is considered a public benefit, we're in yet another twilight zone (such as the commerce clause) where the limits of power can no longer be readily discerned.
Again, in creating an inconsistency and tension on that matter, rubble is strewn on that previously smooth path.
It's not an end all be all fix.
It's more in the spirit of invalidating the assent of silence.
Executive Orders, by their very nature are inherently limited in their scope. For the most part, they pertain pretty strictly to the activities of the deparments of the executive branch, which makes this, at best, a partial fix, leaving a great deal undone.
It does not speak to the activities of local and state governments, where most takings cases take place.
What it does do, however, is create an INCONSISTENCY, and therefore a tension between the various levels of governments approaches to takings, and sets up an eventual deeper fix.
Nonetheless, Exec orders like this set the tone for that which follows, and establishes a leadership position in a subject, which can potentially have a deep effect further down the road.
The two best examples I can think of are the Emancipation Proclamation, which applied only to slaves in territories that Lincoln did not have control of, and the orders that racially integrated the military while the South still practiced segregation as a matter of normal policy.
Like others, this section also gave me pause:
I think beerslurpy's interpretation is a fair representation of our cynic's faction.
Me, reading it in the light of what is normally accepted as public use in takings cases, I think that the wording is carefully crafted such that -tangential- benefit to private parties, (for example, the wages of the guys who build the roads over the land condemned consistently with normal public use takings) remains ok, but that this is ruled out as -a primary effect-.
This primary effect at the heart of the Kelo argument is that the public recieves a tangential benefit in the form of enhanced taxes -as a consequence- of the advancing of the economic interests of third parties.
As beerslurpy points out, so long as any economic development is considered a public benefit, we're in yet another twilight zone (such as the commerce clause) where the limits of power can no longer be readily discerned.
Again, in creating an inconsistency and tension on that matter, rubble is strewn on that previously smooth path.
It's not an end all be all fix.
It's more in the spirit of invalidating the assent of silence.
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