The criticisms of the Supreme Court’s Kelo vs. New London ruling have been loud and constant since it was issued eight days ago, particularly from the right. Indeed, the disapproval prompted Congress to take steps to restrict the government’s eminent domain powers.
The House voted yesterday to use the spending power of Congress to undermine a Supreme Court ruling allowing local governments to force the sale of private property for economic development purposes. Key members of the House and Senate vowed to take even broader steps soon.
Last week’s 5 to 4 decision has drawn a swift and visceral backlash from an unusual coalition of conservatives concerned about property rights and liberals worried about the effect on poor people, whose property is often vulnerable to condemnation because it does not generate a lot of revenue.
The House measure, which passed 231 to 189, would deny federal funds to any city or state project that used eminent domain to force people to sell their property to make way for a profit-making project such as a hotel or mall. Historically, eminent domain has been used mainly for public purposes such as highways or airports.
The right’s reaction to the court’s ruling has been aggressive and, for the most part, principled. But I can’t help but wonder: where’s the White House on all this? Some of the conservatives who’ve blasted the Kelo ruling may be disappointed to learn that their pro-property rights president hasn’t exactly been on their side.
As near as I can tell, the only White House response to the Kelo ruling came a week ago, during a press briefing. Scott McClellan has criticized plenty of court rulings in the past, but took a measured tone in discussing this decision.
“First of all, on the Supreme Court decision from yesterday, we were not a party to that case. The President has always been a strong supporter of private property rights. Obviously, we have to respect the decisions of the Supreme Court, and we do. … I think the President has made his views clear when it comes to private property rights.”
Actually, his views on these specific property rights are anything but clear.
Indeed, the Wall Street Journal’s editorial page, perhaps the most conservative piece of real estate in the mainstream American media, took Bush to task in January because he seemed to be siding with local governments over property owners.
On the campaign trail last year, President Bush said a priority of his second term would be to “build an ownership society, because ownership brings security, and dignity, and independence.” Sounds good to us. But the rhetoric doesn’t square with news that the Administration may file an amicus brief against property owners in an upcoming Supreme Court case concerning eminent domain.
Never mind that there’s no pressing reason for the federal government to weigh in at all on the case, Kelo v. New London, since the issue before the court is a matter of state and local authority. What’s more strange, given the President’s ownership agenda and stated affinity for strict constructionism, is that the Bush Justice Department would consider siding with opponents of property rights.
Ultimately, Bush was lobbied from both sides. Business Roundtable-types and local governments pushed the administration to back their approach, while property owners urged Bush to side with them. According to a report in the conservative New York Sun, Bush was poised to support an expansion of the government’s eminent domain powers, but didn’t after some conservative leaders argued that it could cause political problems shortly before the presidential election. As a result, the Bush administration backed off and didn’t file a brief at all.
Nevertheless, the president was apparently prepared to stand against private property owners, and now that the ruling has been issued, Bush and the White House haven’t said much of anything, even as congressional Republicans have expressed outrage at what Tom DeLay called “a horrible decision.”
So, how about some follow-up here? It’s a simple question for the White House: does the president believe the Kelo ruling is right or wrong?