Topic: Government and Politics

A Special Kind of Eminent Domain Abuse

In federal eminent domain cases, the “scope of the project” rule requires that in determining “just compensation” under the Fifth Amendment’s Takings Clause, any increase or decrease in property value caused by the federal project be disregarded.  As it turns out, the federal government had discussed the idea of expanding Everglades National Park for over 30 years, and also induced the local government to enact tougher zoning standards that decreased the value of the property that was to be taken for this purpose.  This type of behavior is a special kind of eminent domain abuse called “condemnation blight.”

The Everglades-related federal actions forced Gilbert Fornatora to watch the value of his South Florida property decline until the federal government finally condemned it – and paid him much lower compensation than he would otherwise have received.  Then, once condemnation proceedings began, the government manipulated the hearing schedule by front-loading ill-prepared owners who lacked counsel, thereby setting a low valuation precedent that would then be applied to the later parties with representation, like Fornatora.  The Eleventh Circuit sided with the government, so Fornatora petitioned the Supreme Court to review the case.

Cato filed an amicus brief supporting this petition, arguing that property owners have virtually no “scope of the project” protection if they must prove that the government’s sole or primary purpose for pre-condemnation action was to depress property values for later eminent domain proceedings.  A more workable test, consistent with due process, is merely to require evidence of a nexus between the government’s actions and the depressed property value.  The Court should also hear this case to ensure that just compensation proceedings comport with the due process, equal protection, and general fairness standards the government is required to follow in a variety of other settings.

The Court will be deciding early in the new year whether to hear the case, which has the ungainly name of 480.00 Acres of Land v. United States.

Should the Government Pay for Christian Science?

Leaders of the Church of Christ, Scientist, are pushing to get a provision into the health care bill that would mandate equal treatment for “spiritual healing,” such as Christian Science prayer treatments. Sens. John Kerry and Orrin Hatch are trying to get it inserted into the Senate bill, according to the Washington Post.

Kerry’s spokeswoman, Whitney Smith, told the Los Angeles Times that insurers would not be forced to cover prayer. Instead, she said, “the amendment would prevent insurers from discriminating against benefits that qualify as spiritual care if the care is recognized by the IRS as a legitimate medical expense. Plans are free to impose standards on spiritual and medical care as long as both are treated equally. It does not mandate that plans provide spiritual care.”

So far the provision has not been included in either the House or the Senate bill, but efforts are continuing. The Post reports that “opponents of spiritual care coverage – a coalition of separation-of-church-and-state advocates, pediatricians and children’s health activists – say such a provision would waste money, endanger lives and, in some cases, amount to government-funded prayer.”

To a lot of us, this sounds ridiculous. Pray if you think it helps. But why should that be the government’s business? And why on earth would we want the government to mandate that insurers cover prayers?

But if you want government health care, then this is the world you have chosen. We’ve already seen pitched battles over whether abortion should be covered by government programs, or government-subsidized programs, or insurance plans that participate in the government “exchange.” The House bill eliminates a tax penalty for same-sex couples who receive health benefits from employers, but so far the Senate bill does not. The House bill provides grants to states for “home visitation” programs in which nurses and social workers counsel pregnant women and new mothers in low-income families, coaching them on “parenting practices” and skills needed to “interact with their child to enhance age-appropriate development” – a program that some American families would surely find Big Brother-ish.

But that’s the reality of government-funded and directed health care. If the government is paying for it, then every inclusion or exclusion – abortion, fertility treatments, prayer, same-sex couples, acupuncture, homeopathy – becomes a matter for political decision. And political decisions become the subject of political activity and lobbying, by groups ranging from Big Pharma to small insurance companies to nurses to Catholic bishops to Christian Scientists. No wonder lobbying is up in our increasingly politicized economy, particularly in the health care arena.

You can’t have government pay for something as personal and intimate as health care, and not find the government poking around in the bedroom, the medicine cabinet, the sickroom, and the chapel.

Reforming the GOP

This morning, Politico Arena asks:

Do you take Glenn Beck’s “new national movement” seriously? Is the GOP establishment letting itinerant celebrities and talk show stars set the party’s agenda?

As Winston Churchill understood, democracy is messy (and, as in his case, sometimes ungrateful).  Glenn Beck is no William F. Buckley Jr.  But then, “Joe the Plumber” probably never read National Review, which like most other journals of “high opinion” was never self-sustaining.  Liberals today, their noses in the air Obama style, look across America from the vantage of the famous New Yorker cover and see pitchfork brigades, forgetting that those who fill the brigades generally love America, which is more than can be said of some of the baggage that has surrounded Obama.

There is a problem in the Republican Party, to be sure.  Nominally the party of limited constitutional government, it recently gave us two presidents from the same family – one standing for a “kinder and gentler” government, the other for “compassionate conservatism” – plus a career Senate nominee for president, none of whom ever really understood the party’s core principles, much less nourished them as they must be nourished from generation to generation.  As a result, the party has been hollowed out intellectually and spiritually, and into that vacuum, which nature abhors, has poured an assortment of people, most from outside the party.

The struggle in democracies between intellectual rigor and populism is as old as that between Socrates and the sophists.  We all know the dangers of populist demagoguery.  But there is also great danger in rule by elites, which are hardly immune from demagogy and outright fraud (witness the “accounting” in the current health care debate).  Achieving that balance is often difficult and messy.  But I for one am encouraged by this populist movement to reform the Republican Party.  I know, for example, that at the Orlando rally The New York Times referenced this past Saturday, people passed out copies of the Cato Institute’s pocket Constitution, which includes the Declaration of Independence and my preface relating the two documents with respect to their underlying principles.  The people who attended the April 15 tea parties and the September 12 march on Washington were ordinary Americans who understand that something is fundamentally wrong, constitutionally, with the direction the country has taken over the past two decades, at least.  They see the Republican Party, in our two-party system, as the more likely institution for changing that, but not as the party is presently constituted.  Still, there are people within the party who give hope and are ready to take over.  Populists working outside the party, together with those of us who do “politics” (broadly understood) for a living, may just be the spark that enables that to happen.

ObamaCare Cost-Estimate Watch: Day #157

House Democrats introduced the first complete draft of President Obama’s health plan on June 19.

Since then, Congress has spent 157 days considering the Obama health plan without ever laying eyes on a complete cost estimate.

The Senate has called up its version for floor consideration without a complete cost estimate.  (Shouldn’t these eight Democratic-caucusing senators be upset about that?)

The House even passed its version – again, without a complete cost estimate.

(Cross-posted at Politico’s Health Care Arena.)

Cato Files Brief to Extend Second Amendment Rights, Provide Protections for Privileges or Immunities

Last year, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to the current challenge to Chicago’s handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. The Seventh Circuit answered the question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. The Supreme Court agreed to review the case – after Cato filed an amicus brief supporting the cert petition – and specifically consider whether the Fourteenth Amendment’s Due Process Clause or its Privileges or Immunities Clause is the proper provision for incorporating the Second Amendment right to keep and bear arms as against the states.

Now Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban – who are represented by Alan Gura, the lawyer who successfully argued Heller – and calling for an overruling of the Slaughter-House Cases, which eviscerated the Privileges or Immunities Clause in 1873. Slaughter-House narrowly circumscribed the rights protected by the Privileges or Immunities Clause, contrary to the intentions of the Amendment’s framers and in direct contradiction to the developments in legal theory that underlay its adoption.

We also argue that in addition to ignoring the history surrounding the Fourteenth Amendment, the Slaughter-House majority violated basic rules of constitutional interpretation. Finally, restoring the Privileges or Immunities Clause would not result in the demise of substantive due process because the idea at the core of that doctrine – that the Due Process Clause imposes something more than mere procedural limits on government power – was widely accepted when the Fourteenth Amendment was enacted and its authors rightly believed that the Due Process and the Privileges or Immunities Clauses would provide separate but overlapping protections for individual rights.

Again, go here to read Cato’s brief in McDonald v. City of Chicago.  Related, Josh Blackman and I have put up on SSRN our article, “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” which comes out in January in the Georgetown Journal of Law & Public Policy.  I will be blogging more about “Pandora” – and, of course, the McDonald case – in future.

Rhodes Scholars and the Business World

On the weekend that next year’s Rhodes Scholars are announced, Elliot Gerson, American secretary of the Rhodes Trust and executive vice president of the Aspen Institute, writes in the Washington Post that he is greatly disappointed that a few Rhodes Scholars have gone into business.

Yes, you read that right. He’s disappointed that even a few Rhodes Scholars have chosen to go into business:

For more than a century Rhodes scholars have left Oxford with virtually any job available to them. For much of this time, they have overwhelmingly chosen paths in scholarship, teaching, writing, medicine, scientific research, law, the military and public service. They have reached the highest levels in virtually all fields.

In the 1980s, however, the pattern of career choices began to change. Until then, even though business ambitions and management degrees have not been disfavored in our competition, business careers attracted relatively few Rhodes scholars. No one suggested this was an unfit domain; it was simply the rare scholar who went to Wall Street, finance and general business management. Only three American Rhodes scholars in the 1970s (out of 320) went directly into business from Oxford; by the late 1980s the number grew to that many in a year. Recently, more than twice as many went into business in just one year than did in the entire 1970s.

Apparently Gerson believes that our best and brightest can accomplish more good for the world in such fields as writing, law, and bureaucracy than they can by creating, innovating, and improving lives in the world of business – the arena that not only provides all of us with more comfortable, more interesting lives, and has lifted billions of people out of the back-breaking labor and short lives that were the human condition for millennia, but also makes possible the luxuries of the Aspen Institute, which was founded by Walter Paepcke (1896-1960), chairman of the Container Corporation of America, and is supported by successful businesspeople and their heirs today.

Of course, it’s not clear that business needs Rhodes Scholars. Think of the businesspeople who have revolutionized our world in recent decades: Bill Gates and Paul Allen, Steve Jobs and Steve Wozniak, Larry Ellison, David Geffen, Ted Turner, and Malcom McLean, among others, either never attended or never finished college. Sam Walton, Bill McGowan, and Fred Smith did finish college but weren’t Rhodes Scholars. In the Washington Post Jay Mathews notes that the chief executives of the top 10 U.S.-based Fortune 500 companies attended Pittsburg (Kan.) State, Texas at Austin, University College Dublin, Texas Tech, Texas at Austin, Dartmouth, Kansas, Gannon, Georgia State and Central Oklahoma, not the usual sources of Rhodes Scholars.

But the elite hostility to business – a holdover from Europe, perhaps, where aristocrats looked down on “trade,” or an unconscious echo of Marxism – is unseemly and harmful to both general prosperity and the individuals who are influenced by it to avoid productive enterprise. It crops up in President Obama’s commencement addresses sneering at students who want to “take your diploma, walk off this stage, and chase only after the big house and the nice suits and all the other things that our money culture says you should buy” and in Michelle Obama’s urging hard-pressed women in Ohio, “Don’t go into corporate America.” It’s nice that some people, like senators’ wives, can make $300,000 a year in “the helping industry,” but it’s business that produces the wealth that allows such nonprofit generosity.

Gerson and the Obamas are disparaging the people who built America – the traders and entrepreneurs and manufacturers who gave us railroads and airplanes, housing and appliances, steam engines, electricity, telephones, computers and Starbucks. Ignored here is the work most Americans do, the work that gives us food, clothing, shelter and increasing comfort. That work deserves at least as much respect as “scholarship, teaching, writing, medicine, scientific research, law, the military and public service.”

This Week in Government Failure