Tag: property rights

9/11 Memorial? Good. Eminent Domain Abuse? Bad.

The power of eminent domain, embodied in the Takings Clause of the Fifth Amendment, is so great that it nearly invites abuse, even when the government uses its power for constitutional, and even honorable, reasons.

Case in point: The U.S. Park Service has designed a memorial for Flight 93, the one that crashed in rural Pennsylvania on 9/11.  The plans have been in the works for some time, with the government and representatives of Flight 93’s victims working with the property owners—even explicitly assuring them in 2002 that eminent domain would not be used.

As time passed, however, and the self-imposed deadline to have a memorial in place for the 10-year anniversary of the tragedy grows nearer, the government has become impatient and now plans to condemn the land of the seven owners (representing about 500 of the planned 2,200 acre memorial and national park) who have not yet worked out a deal with the Park Service.

While there are two sides to every story, it seems that the property owners have been flexible and open to negotiation—a far cry from the extorting hold-outs against whom eminent domain is supposed to be invoked:

“It’s absolutely a surprise. I’m shocked by it. I’m disappointed by it,” said Tim Lambert, who owns nearly 164 acres that his grandfather bought in the 1930s. The park service plans to condemn two parcels totaling about five acres — land, he said, he had always intended to donate for the memorial.

“To the best of my knowledge and my lawyer, absolutely no negotiations have taken place with the park service where we’ve sat down and discussed this,” Lambert said.
Lambert said he had mainly dealt with the Families of Flight 93 and said he’s provided the group all the information it’s asked for, including an appraisal.

Even if some takings of property are warranted—a 9/11 memorial certainly fits the “public use” requirement—look at the abuse of power we have here.  Setting aside the question of why Lambert’s five acres are so crucial to a 2,200-acre project (and whether the memorial needs to be that large in the first place), why the strong-arm tactics?

Instead of letting an otherwise legitimate contract negotiation—the very foundation of our private property system—run its course, the government is resorting to robbing people because they had the misfortune to own the land near the place a historic tragedy occurred. This type of abuse is why eminent domain must be used sparingly, and why courts must be vigilant in enforcing the Fifth Amendment’s protection of property rights.

H/T: Nicki Kurokawa.

More Property Rights Shenanigans on the West Coast

Cato recently filed an amicus brief urging the Supreme Court to review a Ninth Circuit decision that tramples on property rights.  (See also this oped I co-authored with co-counsel.)

Well, tomorrow the Ninth Circuit hears another case involving property rights violations, and this time the plaintiffs, in exchange for a building permit, were forced to give up their right to vote. Arguing for the beleaguered property-owners will be none other than Cato adjunct scholar Tim Sandefur.  You can read more about the case in Tim’s own blogpost on PLF’s site.

Here’s the basic principle with these cases: just as the government can’t take your property (for public use) without just compensation, it can’t attach arbitrary regulations and fees.  After all, if you own an acre of land and the government tells you you can’t do anything on it – be it run around or drain puddles or build – it might as well have “taken” it by eminent domain.  And if it says you can do these things only if you give up some other entitlement you have – not necessarily money, but, say, the right to put up signs criticizing the local government – it has imposed an unconstitutional condition on your enjoyment of your property.

Who Will Replace Justice Souter?

You could call it the end of an error.  David Souter, the “stealth justice” who George H. W. Bush nominated mainly to avoid a confirmation battle and who so disappointed conservatives, is finally free to leave a city he never took to and return to his native New Hampshire. 

Little more can be said about Justice Souter. He has always been inscrutable, at first leaning right, shifting toward the middle in the landmark 1992 cases of Planned Parenthood v. Casey (abortion) and Lee v. Weisman (prayer at high school graduation), and ending up at the left end of the Court alongside Justices Stevens, Ginsburg, and Breyer – all the while employing an unpredictable jurisprudential method.  And he has always been reclusive, refusing reporters’ and scholars’ interview requests and being the biggest opponent of video cameras inside the Court.  Perhaps most memorably, Souter gained notoriety after his vote in Kelo v. New London (allowing the taking of a private home for the benefit of a developer) spurred property rights activists to petition for the use of eminent domain to turn his farm into the “Lost Liberty Hotel.”

Speculation now turns to possible replacements, and what President Obama will do with his first chance to fill a seat on the high court.  Will he risk a big political battle on this issue so early in his term, or will he appoint someone more confirmable but less pleasing to his base? 

He is under great pressure to appoint a woman, and the three leading female candidates are new Solicitor General Elena Kagan, Second Circuit Judge Sonia Sotomayor, and Seventh Circuit Judge Diane Wood.  Kagan would be an almost-certain pick a year from now, but having been just confirmed to be the so-called Tenth Justice, she might be seen as too green for elevation.  Sotomayor — because she is Hispanic and despite a mixed judicial record — was the odds-on favorite until the Court took up the employment discrimination case of Ricci v. DeStefano (argued just last week), an appeal of a bizarre opinion Sotomayor joined that denied the claims of firefighters who had been passed over for promotion because of their race.  That leaves Wood, a renowned authority on antitrust, international trade, and federal civil procedure, whose age (58) suggests that this is likely the last vacancy for which she will be considered.  Wood offers a seriousness of purpose and no ideological ax to grind, and is thus the best nominee supporters of constitutionalism and the rule of law can hope for at this time.  (Full disclosure: I took two classes from Judge Wood in law school.)

Adam Smith Goes to Somalia: “Competition Keeps Prices Low”

Many people would agree that modern-day Somalia represents a Hobbesian state of nature. But could anarchy strengthen Somalia’s private sector? This article is certainly very old, but I came across it yesterday and thought the argument would be of interest to political theorists and classical liberals:

…local businesspeople find it easier to do business in a country where there is no government. “There is no need to obtain licences and, in contrast with many other parts of Africa, there is no state-run monopoly that prevents new competitors setting up. Keeping price low is helped by the absence of any need to pay taxes.”

Of course, the absence of a stable and legitimate political and judicial system, compounded by unyielding internecine violence, means individual and private property rights can never be fully protected and we aren’t likely to see foreign businesses flocking to this chaotic country in the foreseeable future. Generally speaking, the proper role of government is to protect individual rights. But the proper role of our government – abroad – should be limited to instances when our national sovereignty or territorial integrity is at risk.  As exemplified in Somalia, America’s attempts to stabilize failed states or pacify foreign populations usually fail, exacerbate already disastrous situations, and are, in principle, gratuitous abuses of American power [See: the calamitous U.S.-backed Ethiopian invasion of Somalia].

In Defense of “Libertarian Crusades”

We in the public interest legal community – especially on the libertarian or conservative side – are used to taking slings and arrows from all quarters.  The media doesn’t understand our quaint obsession with following the text of the Constitution.  The so-called progressives seethe at our evil defense of property rights and the freedom of contract.  Even the business community blanches at our refusal to leave their sacred regulatory protections untouched in our attack on statism.

But what we don’t expect is to see federal judges openly and wantonly question our motives – least of all in an actual opinion.  Yet this is precisely what Judge Jacques “Jack” Wiener did last Thursday in dissenting from a Fourth Amendment seizure/Fifth Amendment takings case.  The case, Severance v. Patterson, involves a challenge to a Texas law that caused the seizure of beachfront property after Hurricane Rita pushed the vegetation line landward.  The purpose of the law, the Open Beaches Act, is to ensure public access to the beach regardless of erosion and other natural land migrations (a.k.a. a “rolling easement”).  The Fifth Circuit panel ended up affirming the dismissal of part of the claims and asking the Texas Supreme Court for a ruling on state-law issues implicated in others.

But the legal details aren’t important.  What I want to highlight is Wiener’s dissent, which begins with the following “Context” (a section title not commonly found in judicial opinions; see pages 22-23 here):

Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s published mission statement declares that its raison d’être includes “defend[ing] the fundamental human right of private property,” noting that such defense is part of each generation’s obligation to guard “against government encroachment.”) The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets. And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority’s reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance’s action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).

 
Apparently in Judge Wiener’s world, it is beyond the pale for an organization to provide pro bono legal services that also advance some larger ideological mission.  Somebody tell the NAACP or ACLU – or the Supreme Court for that matter, which invites amicus briefs from just the kinds of groups Wiener excoriates.  Cato itself routinely files such briefs, of course, and on several occasions has joined with PLF.

Chief Judge Jones pithily dispatches her colleague’s grandiloquence in the majority’s first footnote (see bottom of page 2 here):

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent (“Context”), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.

And I won’t even get into Wiener’s mixed metaphors and schoolboy Latin – he meant qua, not cum – other than to say “hit the road, Jack.”

(Full disclosure: I clerked on the Fifth Circuit and am familiar with Wiener’s squishy, unreliable jurisprudence; he’s very nice in person, but something happens in chambers – left-wing clerks? – that detracts from his effectiveness.  One caveat: Wiener is a great friend of the taxpayer; the IRS does not win in his courtroom.)

For commentary from the Volokh Conspiracy, see here.  For PLF’s press release, see here.  Hat tip: Cato adjunct scholar Tim Sandefur (whose day job is with PLF, though he did not work on this case).

When the Government Takes Your Money, It Takes Your Property

When Daniel and Andrea McClung applied for a permit to build a small business on their property in Sumner, Washington, the city charged them nearly $50,000 to pay for improvements to the city’s entire storm drainage system.

The McClungs sued the city under the Fifth Amendment to the Constitution, whose Takings Clause prohibits the government from “taking” private property for public use without just compensation.  They argue that the city cannot force them to pay fees for off-site pipes absent proof that their development would have a specific detrimental effect on the existing drainage system–and without any evidence that the impact was worth $50,000.

The Ninth Circuit ruled in favor of the city, reasoning that money is not property (so there could be no unconstitutional taking) and that because the fees were imposed by ordinance (so the city’s determination that the pipes needed upgrading was justification enough for the fees).  The McClungs have now asked the Supreme Court to review their case.

Cato, joined by the Pacific Legal Foundation and the Building Industry Association of Washington, argues that this case is a perfect vehicle for the Court to revisit the scope of Fifth Amendment protections.

Our brief highlights the deep divisions among state and federal courts over several important issues, such as whether the Takings Clause applies to legislative (as opposed to bureaucratic) exactions and whether it applies to monetary exactions (not just burdens on land use).  The Court should take this case to ensure that the standard for reviewing development conditions is uniform across the country and make clear that property right protections do not depend on ill-defined distinctions such as the form of property demanded by the government or the manner in which a condition is imposed.

When the Goverment Robs Peter to Pay Paul, It Violates the Constitution

The Supreme Court’s 2005 decision that the government could use its eminent domain power to transfer private property to a different private actor – which promised to use it to generate more tax revenue – touched off a firestorm of criticism and created a movement to strengthen property rights.  (For the story behind that case, Kelo v. New London, I recommend Little Pink House: A True Story of Defiance and Courage, for which Cato hosted a book forum in January.)   On Friday, Cato filed a brief urging the Supreme Court to review a decision ratifying a similar, even more blatant, government taking of private property for a non-public use.

In Empress Casino v. Giannoulias, the Illinois Supreme Court upheld a statute transferring money from private riverboat casinos – and at that only the certain politically disfavored ones located in and around Chicago – to private horseracing tracks.  The state high court found that the Fifth Amendment’s Takings Clause does not apply to exactions of money from private entities, which ruling the casinos are asking the U.S. Supreme Court to review.

Cato’s brief argues that the Court should grant certiorari for yet another reason: The Illinois statute (which coincidentally appeared in the transcript of the Blagojevich sting) is in clear violation of the Takings Clause’s “public use” requirement, impermissibly eroding protections for private property even under Kelo’s (flawed) standard. The statute does nothing more than rob Peter to pay Paul, a result that cannot be squared with the Fifth Amendment, which permits government takings only for public use, and then only if just compensation is paid. This case instead involves a naked transfer of the casinos’ revenues to the racetracks, with no meaningful restriction on how the racetracks use those funds — and does not remotely resemble any public use approved by the Supreme Court.

Permitting such a statute to stand will only encourage federal, state, and local governments to exact funds from one private actor for the exclusive benefit of another, transgressing the very property rights and economic liberties that inspired the Declaration of Independence and Constitution.