Bush Backs Kelo

Another Failure of the Kelo Backlash - President Bush's Executive Order on Takings

Prof. Somin makes the point that the putative benefits of eminent domain "...can usually be achieved by methods other than coercion..."

I happen to agree. Many people argue for eminent domain when it is not even essential (and in fact is usually counterproductive when you are talking about neighborhood revitalization.)

The larger legal issue interests me as well as it seems to me that the Professor is in essence arguing for an extension of a "least intrusive means test" to all government action and to breaking down the wall between "fundamental rights" and economic rights and the special, heightened review given by Courts to the former.

But such a move would reverse 80 years of Supreme Court decision-making. No? It could involve Courts in reviewing the efficacy of every local zoning ordinance. In theory, some Environmental Policy Acts (Washington State's) do something similar when they require a review of "alternatives to the proposed action" but I am not aware that our Courts have ever stepped in to require the adoption of a "least impacting alternative."