Not that Chinese Thing Again!

         No, Virginia, in spite of the old wives’ tales still circulating in the blogosphere, Hillary Clinton did NOT grant the Chinese the power to take property in the U.S. by eminent domain, as a form of security for the debt that the U.S. owes to Chinese buyers of Treasury bonds. No way.

        While we are not privy to what her Hillaryship may have said  to the Chinese folks with whom she spoke, she could not have validly committed the United States to such a deal. Why? Because only the legislature, the Congress, can authorize the use of eminent domain by anybody, and if it doesn’t, there can be no taking. The California Department of Transportation learned this lesson the hard way, some years ago. It tried to put a freeway through a cemetery only to  run smack into a statute that forbade the taking of property from cemeteries for roads. Nothing doing, said the courts.

         Though eminent domain is often said to be a “sovereign prerogative,” in the United States “the sovereign” is a tri-partite entity consisting of the executive, legislative and judicial branches. Thus, to speak of “the sovereign” in this context can be confusing to lay folks. In the United States, the power of eminent domain is primarily a dormant legislative power — it may not be exercised unless the legislature expressly authorizes it. Thus, Congress can exercise the power of eminent domain itself by an act of legislative expropriation, without filing a court action. It can pass a bill declaring that specifically described property has eo instanti been expropriated and title to it transferred to the government, leaving the owner free to sue for just compensation in the U.S. Court of Federal Claims. In fact, that is how the Redwood National Park and the Manassas Battleground Memorial were created.

         In the ordinary course of things, the legislature authorizes the exercise of the power for specified purposes, the executive branch of government then files a condemnation action in court, and the judicial branch determines what compensation is due, or, in rare cases, whether the exercise of the eminent domain power is lawful — i.e., whether it is for public use, and whether the condemnor has met the statutory preconditions to its exercise, and has followed the statutorily prescribed procedures.

         Since to the best of our knowledge Congress has not authorized any such Chinese expropriations, any supposed grant of the taking power to the Chinese (or anyone else) by the Secretary of State would be invalid on its face.

         So rest easy, folks. The use of eminent domain can be grossly unfair and immoral, but its use can only be authorized by the legislature. So keep that in mind when your congressional or legislative candidate asks for your vote.

         

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