The Bush family and eminent domain

|The Volokh Conspiracy |

Jeb Bush.
Jeb Bush.

Finding it difficult to defend his own history of eminent domain abuse, which came up in the most recent GOP presidential debate, Donald Trump has decided to go on the offensive by claiming that the Bush family has also benefited from abusive takings:

Following attacks from primary rival Jeb Bush about his past use of eminent domain, Republican presidential hopeful Donald Trump on Sunday accused the Bush family of using the practice to build a baseball stadium in Texas.

"Eminent domain is a very important thing," Trump said on ABC's "This Week." "Jeb Bush doesn't understand what it means, and if you look into the Bush family—I found this five minutes ago—they used eminent domain for the stadium in Texas, where they own, I guess, a piece of the Texas Rangers."

When host George Stephanopoulos said that was Jeb's brother, former President George W. Bush, Trump said his point still stands.

"That doesn't matter," he said. "It was the Bush family. They used private eminent domain. He didn't tell anybody this. So, I mean, he should have told people."

It is indeed true that George W. Bush successfully lobbied the government to use eminent domain in order to acquire land to build a parking lot for a baseball stadium, back when he owned the Texas Rangers in the early 1990s. While the parking lot was officially publicly owned, in reality Bush had complete control over it and was only required to pay a nominal rent of one dollar per year. I briefly discuss this sorry incident in Chapter 8 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. Using eminent domain for sports stadiums is a terrible idea, because this and other public subsidies for stadiums almost never create any net benefit for the community.

George W. Bush and the officials who authorized the stadium parking lot taking deserve severe criticism for their actions in that case. As president, Bush added insult to injury when he issued an executive order that purported to limit abusive takings, but actually did no such thing. But Bush's bad behavior in no way justifies Trump's own lobbying for abusive takings. Here, as elsewhere, two wrongs don't make a right.

Jeb Bush, on the other hand, has a much better record on eminent domain issues than his brother. In the aftermath of the Supreme Court's controversial decision upholding takings for private "economic development" in Kelo v. City of New London, Florida adopted what may have been the strongest post-Kelo reform law in the entire country. In addition to banning "economic development" condemnations like the one at issue in Kelo, it also categorically banned "blight" condemnations, which often victimize the poor and racial minorities for the benefit of powerful interests.

Jeb Bush was Governor of Florida at the time, and he signed the reform bill into law. The legislation was sponsored by Marco Rubio, who at that time was about to become Speaker of the Florida House of Representatives. Today, of course, he is one of Bush and Trump's leading rivals for the GOP nomination. One can argue about exactly how the credit for this important reform should be divided between Bush, Rubio, and others who worked to get it passed. My own impression is that Bush's role in the process was relatively modest. Still, Bush's record on this issue is far better than Trump's. As he correctly pointed during the debate, Florida's reforms forbid the sorts of abusive takings that Trump has lobbied for.