Author Archive
Activity vs. Inactivity
The challenge to the constitutionality of the individual mandate — Obamacare’s central feature, without which the whole regulatory scheme collapses (practically speaking, though I agree with Judge Vinson that it also can’t be severed as a matter of law) – boils down to whether, under modern constitutional doctrine regarding what Congress can do under the guise of regulating interstate commerce, the government can force “inactive” people into a particular action, namely buying health insurance.
That is, while cases like Wickard (Congress can force farmer to meet quota and bring crops to market) and Raich (Congress can stop wholly intrastate growth and consumption of marijuana) — moving from wheat to weed — are disconcerting for those of us who see limits on federal power, there is a qualitative difference between regulating or prohibiting existing economic activity and mandating that someone engage in such activity. When Randy Barnett (who argued Raich) first articulated that distinction and labeled the new assertion of federal power “unprecedented,” that’s what he meant: Congress has never forced people to engage in economic activity. Not during the New Deal – nobody had to become a farmer or buy wheat — nor during the Civil Rights Era — if you didn’t want to serve blacks, you could shut down your restaurant or hotel.
The “activity/inactivity” distinction thus becomes the last straw holding back a general federal police power that would allow Congress to require anything of the citizenry so long as it was part of a national regulatory scheme. No enumerated power to require people to buy Chevys? No problem, we’ll have a full-scale auto bailout that only works if people have to buy Chevys. No enumerated power to require people to take out Fannie Mae mortgages? No problem, we’ll have a “National Housing Market Recovery Act” that only works if people have to do just that. You don’t have to invoke broccoli or asparagus to make the point; the “broccoli mandate” is used so often only because, if anything, requirements to buy healthy foods and join gyms would be more closely connected to the goal of reducing taxpayer spending on health care than the individual health insurance mandate.
In any case, I won’t go on about activity vs. inactivity because you can read all about it in our latest brief and also in a fascinating Volokh Conspiracy debate among Orin Kerr, Jon Adler — both of whom will be contributing to this year’s Cato Supreme Court Review — and Randy Barnett:
- Orin notes that the Fourth Circuit judges were “baffled” by the activity/inactivity distinction;
- Jon replies that he’s baffled that anybody could be baffled by that;
- Randy offers a different take on the judges’ concerns;
- Orin discusses a possible analogy of the definition of “activity” to its common-law equivalent, the “actus reus”;
- Randy issues a rejoinder to Orin’s analysis;
- Orin clarifies the issue.
Fascinating stuff, and a discussion that will continue — and not just on the VC.
Cato’s Latest Obamacare Brief
As I noted yesterday, Obamacare is moving towards its inevitable date with the Supreme Court. Although the pace may be aggravating, attorneys on both sides are strengthening their arguments and clarifying the issues presented.
Cato’s latest brief, filed today in the Eleventh Circuit in support of 26 states and the National Federation of Independent Business, sharpens the position we already expressed in briefs filed in the Fourth Circuit and the Sixth Circuit. Our focus remains the question of whether the Constitution authorizes Congress to mandate that individuals purchase health insurance or suffer a fine.
The government has subtly shifted its thinking at this stage, however, to argue that the individual mandate does not so much compel “inactive” citizens to act but merely regulates when and how health care is purchased. Everyone will eventually purchase health care, the argument goes, and the mandate requires that people pre-pay for that care so they don’t shift the costs onto others.
We point out how this argument is a spurious misdirection, an attempt to recharacterize the individual mandate in terms that are directly contrary to the purpose and function of the overall statute. Obamacare explicitly regulates the status of being uninsured—and not just those who seek to shift health care costs to the future or slough them onto taxpayers (indeed, the politically uncomfortable truth is that those most likely to incur health care expenses they cannot pay, the poor, are exempt from the mandate).
We argue that, regardless of the spin that the government places on it, the individual mandate “regulates” inactivity, something that not even modern constitutional doctrine allows. The status of being uninsured cannot be transformed into economic activity via semantic prestidigitation; no matter how artfully articulated, a decision not to purchase insurance, or to do nothing, or to self-insure, is not a federally regulable action. The outermost bounds of Congress’s power under the Commerce Clause, as exercised via the Necessary and Proper Clause, reach certain classes of intrastate economic activity that substantially affects interstate commerce. But Congress cannot reach inactivity even if it purports to act pursuant to a broader regulatory scheme.
Allowing Congress to conscript citizens into economic transactions would not only be unprecedented—as government-friendly the precedent is—but would fundamentally alter the relationship between the sovereign people and their supposed “public servants.” The individual mandate “commandeers the people” into the federal government’s brave new health care world.
The Eleventh Circuit will hear Florida v. U.S. Dep’t of Health & Human Services in Atlanta on June 8.
Yes, Says Virginia, There Are Limits on Federal Power
Today, the Fourth Circuit became the first appellate court in the nation to enter the Obamacare fray. It heard two very similar cases back-to-back, Liberty University’s, in which the government won in the district court, and the Commonwealth of Virginia’s, in which Judge Henry Hudson struck down the individual mandate back in December. Going into the hearing, Virginia Attorney General Ken Cuccinelli’s legal team had done a wonderful job setting out the reasons why Hudson was correct and why Congress went too far in asserting the unprecedented power to compel people to enter into contracts with private insurance companies. I was proud to sign Cato’s brief supporting that position and continue to maintain that the federal government cannot require people to buy goods or services under the guise of regulating interstate commerce. Moreover, the individual mandate is the linchpin of the overall legislative scheme (as everyone concedes), so if it falls, the rest of the law—at least its central provisions—must fall with it.
Indeed, the Fourth Circuit judges—a Clinton appointee and two Obama appointees, in a random selection unfortunate to the challengers—struggled with the idea that Congress could regulate “inactivity.” The government—which has now determined that the challenges are so serious as to send the solicitor general to argue in lower courts—claimed that Congress can do anything it wants relating to anything that in any way affects a national market such as that for health care. Given that decisions not to buy insurance, or to self-insure, or not to pay for health care until presented with a bill, clearly have a substantial effect on interstate commerce, the argument went, Congress can require people to buy health insurance. The judges seemed to agree to a certain extent but were still troubled by the textual truism that a power to “regulate” implies an active object or activity that is being regulated. And indeed, if a “decision” not to buy something or the state of not having acquired something is all that is required to invoke congressional jurisdiction, then the Constitution’s enumerations of federal power mean absolutely nothing.
The government is understandably unconcerned with articulating a principled limit on its own power, and this particular panel of judges may find some way to avoid dealing with the activity/inactivity conundrum, but one can only hope that the Supreme Court ultimately rejects the claim that Congress can grant itself unlimited power simply by legislating in an area of great national concern.
Starting at 2pm Eastern, you can stream the oral arguments from the Court’s website here.
What Immigration Reform Would Look Like
Utah’s done it (great editorial in the WSJ):
Passed by the state’s GOP legislature and signed by Republican Governor Gary Herbert in March, Utah’s plan is notable because it’s the first in the country that would allow undocumented immigrants to get a permit and work legally, after paying a fine of up to $2500 and meeting other conditions. The program is part of a larger package that includes increased scrutiny of immigrants who break the law. The compromise allows the state to address the economy’s demand for workers—thus reducing the incentive for illegal immigration—while satisfying voters who don’t want to reward those who arrived illegally.
Of course, states can’t just announce their own guest-worker programs — the federal government has plenary power over immigration — so Utah may need a waiver from the feds. Which might not be forthcoming, given politically tone-deaf and legally dangerous statements like this:
In a Senate Judiciary hearing on Wednesday, Attorney General Eric Holder said the law, which combines enforcement measures with a guest worker program, needs to be adjusted or face federal lawsuits. Pressed on whether the Administration planned to sue Utah, Mr. Holder said the Department of Justice “will look at the law, and if it is not changed to our satisfaction by 2013, we will take the necessary steps.”
“To our satisfaction?” What does Holder think an eventual federal immigration solution would look like? Here’s Cato’s proposal, but anything that gets through Congress will have to expand employment opportunities for both skilled and unskilled immigrants, normalize the status of current illegals, and otherwise refocus resources on criminals and terrorists.
But it’s not just the government that’s up in arms about Utah’s sensible legislation:
Like Arizona, Utah is already fending off lawsuits from the left. On Tuesday, the American Civil Liberties Union and the National Immigration Law Center sued to stop the portion of the law similar to the one in Arizona that enlists state and local police in the effort to identify illegal immigrants. In Utah’s version, anyone who is arrested for a felony or serious misdemeanor has to show proof of citizenship.
Good grief! State officials do not violate the Supremacy Clause — or engage in unconstitutional racial profiling — when they enforce federal law, which is what Utah’s enforcement measures, like most of Arizona’s, do. Critics naturally maintain that such enforcement decisions should be left to the feds but that only gets it half right: the federal government, particularly its executive branch, has discretion over how to prioritize enforcement priorities, but those discretionary decisions (which, after all, can change from one administration to another and even within one presidency) cannot preempt state law. Only federal law can do that.
This not a question of policy; while I generally like Utah’s plan, I’ve written before that Arizona’s (very different) SB 1070 is constitutional but mostly bad policy. The larger issue is states wanting to do something in the face of federal abdication. Some of Utah’s laws — the “plan” is actually five separate laws, covering the spectrum of immigration issues from expanding legal immigration (HB469, HB466) to addressing those already here for economic reasons (HB116) to addressing serious criminals (HB116, HB497) — may well end up losing in court, but they at least get national attention and to try to push federal action (SJR12).
As Rep. John Dougall, Vice Chair for Appropriations (#2 on the state budget), has explained to me, a major goal Utah had was to shift the dialogue from “enforcement only” to something more comprehensive, especially expanding legal immigration. A more controversial purpose was to plant the federalism flag, arguing that states share some of the jurisdiction over immigration. For example, Dougall wrote in an email to me that I quote with his permission, “HB469 rests on the belief that citizens should have the right to freely associate with anyone in the world, who don’t pose a public safety threat to others, and those citizens should be able to sponsor those immigrants in UT. A belief that the state should defend a citizen’s right to freely associate from an overly expansive federal government.”
I’m not fully convinced that some of this isn’t preempted — by federal law, not by what attorneys general or secretaries of homeland security say or do – but the goal is laudable and the classical liberal first principles are unassailable. The Utah model could work for other states looking to split the Gordian knot between the extremists on both sides whose “debate” generates into ”amnesty” versus “racism.” Texas Republicans have introduced similar legislation and other states’ lawmakers are also apparently interested.
That’s all to the good: even if you can’t enjoy the “greatest snow on earth” during the summer, anyone interested in innovative immigration reform should book a flight to Salt Lake City.
Drinking Away Your Constitutional Problems
Santa Clara law professor Brad Joondeph, who runs the very helpful — as a primary document aggregator for all the Obamacare cases – ACA Litigation Blog, thinks he’s stumbled onto something :
So after reading my roughly 500th ACA-litigation-related brief, motion, or filing of some sort, I think I have gotten a little punchy. But it occurs to me that a a great new drinking game for those ACA litigation buffs who sit around on Friday nights drinking beers — a huge cohort, I am sure — would be to read aloud briefs filed by the challengers, and take turns drinking when the word “unprecedented” is used.
Indeed, the argument that there is no Supreme Court precedent sanctioning the assertion of power the government claims – that the individual mandate is, quite literally, unprecedented — goes back to the earliest articulated constitutional arguments against Obamacare, particularly by the “intellectual godfather” of the legal challenges. I can tell you that Cato’s latest Obamacare brief, which we’ll be filing in the Eleventh Circuit — the Florida-led 26-state case – next week, uses the word three times. (We also use “novel.”)
The drinking game that Joondeph proposes, however, is not, um, unprecedented. Josh Blackman has been talking about it incessantly at least since our time writing about the Privileges or Immunities Clause. He even blogged about it last August!
I would suggest that Brad and Josh play the “unprecedented” drinking game to settle the score once and for all, but alas Josh doesn’t drink. Maybe I should step in for him; if I can bet Yale law professor Akhil Amar $100 on the outcome of the litigation, I can certainly do this.
For other connections between booze and the Commerce Clause, see my recent post on the (unfortunately not unprecedented) Care Act.
End of an Era, Passing of an Age
Yesterday’s giants continue to exit the arena: I missed the news cycle on this, but two weeks ago Bill Rusher died at the ripe old age of 87.
Rusher was a conservative writer and activist, and the publisher of National Review in its first few decades. Although he mostly dropped off the public stage after retiring from NR in 1989, he had latterly been involved with such Cato-friendly groups as the Pacific Research Institute and Pacific Legal Foundation.
From the Wall Street Journal‘s obit-itorial:
In the early 1960s, Rusher and others built the foundation for what became Barry Goldwater’s successful run for the Republican Presidential nomination in 1964. While Goldwater lost, his candidacy signaled the conservative ascendancy within the GOP that culminated in Ronald Reagan’s election in 1980.
Rusher wrote a successful syndicated column for 36 years in which he exhibited his fundamental optimism about America and its purposes—even through the dark days of reckless government expansion after 2008. Having once thought Reagan should mount a populist, third-party challenge to the GOP in the 1970s, Rusher and the tea party were kindred spirits. He had a deep faith in the ability of the American people to regain their bearings after a political mistake.
He was also a man of great personal dignity and superb taste who we recall once offering us the very good advice that, “The best restaurant is the restaurant that knows you best.”
It is this last bit that has perhaps stuck most with me about the man, whom I met a few times in college because Rusher enjoyed mentoring young right-of-center writers. I remember well talking with him late into the night about how to balance intellectualism and activism, or more simply how to put ideas into action. Well into his 70s by then, Rusher had this cool, stylish charm, a lively mind behind a steely manner (and an impeccable wardrobe).
Not quite a household name any more even in conservative circles, Bill Rusher will certainly be missed in my household.
Obamacare on Appeal
As advocates gear up for the first appellate argument in the ongoing Obamacare lawsuits — Tuesday in Richmond — today marks an important milestone: the filing of two eloquent briefs responding to the government’s appeal of Judge Roger Vinson’s January ruling that found the individual mandate unconstitutional and non-severable, thereby striking the entire legislation.
These two briefs, one by 26 states (and for the first time signed by former solicitor general Paul Clement) and one by the private co-plaintiffs in that same Florida case (the National Federation of Independent Business and two individuals) present a full-throated defense of the basic principle upon which this country was founded: that the federal government is one of enumerated and limited powers whose primary goal is to preserve liberty. They describe exhaustively why that government cannot require people to buy goods or services as a means of regulating interstate commerce and why therefore the unprecedented individual mandate goes beyond what the Constitution authorizes. Indeed, forcing people to buy health insurance is neither a regulation of interstate commerce nor a constitutionally appropriate means of achieving such regulation.
If the Eleventh Circuit, which will hear argument June 8 in Atlanta, takes these arguments seriously – and adheres to the truism that the Constitution provides fixed limits on federal power — then the “linchpin” of Obamacare is doomed. Any ruling to the contrary, allowing the individual mandate to stand, would unleash an entirely novel and unbounded conception of federal power.
Cato will be filing our own brief a week from today. Georgetown law professor and Cato senior fellow Randy Barnett will not be on it, however, because he has joined the NFIB’s legal team — an exciting development, to be sure!
Conservatives Win, Socialists Up, Liberals Down, Separatists Out
The conventional wisdom is that the United States is a center-right country while Canada is a center-left one. Yet, even as the most-left-wing president in history occupies the White House, last night the Conservative Party of Canada — which had already been steering its ship of state in a fiscally prudent direction despite only having a plurality of seats in Parliament – won a decisive victory. Prime Minister Stephen Harper will thus lead the first first majority government by any party since 2004 (after the first election creating a majority government since 2000).
How can this be?
The answer comes down to three main factors:
- Electoral system. Canada has a multi-party first-past-the-post parliamentary system that currently features one united center-right party and an opposition split among two major left-wing parties, Quebec separatists, and a not-inconsequential Green Party. Thus, the Tories’ 40% of the popular vote (up 2% since the 2008 election) translated to 166 of the 305 seats in Parliament (a gain of 23). Recall that John McCain won 45.7% of the vote in the 2008 presidential campaign.
- Timing of terms of office. If President Obama had run for re-election yesterday — well, maybe not yesterday, the day after announcing the end of Osama bin Laden — he might very well have lost (depending on the vagaries of the electoral college and who the GOP ran against him). As it was, of course, the Republicans did win big in the 2010 midterms and stand to do so again in 2012 regardless of the result of the presidential election. Also, one of the themes of this year’s Canadian election was that the opposition forced an election that Canadians “did not want” and considered to be a waste of money.
- Leadership/personality. Barack Obama was a singular individual at a unique time (financial collapse, Bush fatigue, etc.). The leader of the Liberal Party of Canada, meanwhile, former Oxford and Harvard professor Michael Ignatieff, who hadn’t lived in the country for 30 years before entering Parliament in 2006 (see the Conservatives’ hilarious and devastating attack ads), was a wooden campaigner who failed to connect with the average voter.
And so, even as 60% of Canadians voted for a party other than the Conservatives — 31% New Democrats (socialist/labor), 19% Liberal, 6% Bloc Quebecois (separatists), 4% Green – they will have a Tory majority government until (probably) October 2015. Given that social issues don’t play much of a role in Canadian public affairs, this is generally a good result for friends of liberty. Now that he has his majority, we’ll see how much more Prime Minister Harper moves in the free-market direction he has long said he would if given the opportunity.
For those interested in more than that basic synopsis and US/Canada comparison, read on below the fold.
Supreme Court Rules That Arbitration Provisions Should Be Enforced
A few readers have now asked me about the “libertarian” reaction to yesterday’s Supreme Court ruling that allows companies to use boilerplate contract provisions that require consumers to arbitrate any disputes individually rather than coming together as a class action for arbitration purposes (let alone being able to bring claims into court). That is, where an individual claim isn’t worth that much money (about $30 in yesterday’s case of AT&T Mobility v. Concepcion), no lawyer will take the case and so only by having a class file collectively, the argument goes, will justice be served.
The ruling broke down 5-4 on “conventional” lines, with an opinion by Justice Scalia, joined by the Chief Justice and Justices Kennedy, Thomas, and Alito, holding that the Federal Arbitration Act trumped (“preempted” by operation of the Constitution’s Supremacy Clause) California law that was more favorable to the plaintiffs. Justice Thomas also filed a concurrence, noting that “state public policy against arbitration” is not enough to revoke a contract with an arbitration agreement. Justice Breyer dissented, joined by Justices Ginsberg, Sotomayor, and Kagan, arguing that certain class action waivers are unenforceable.
Here’s some more background (edited from a useful summary I received in a Heritage Foundation email): A cellular telephone contract between the parties provided for arbitration of all disputes, but did not permit classwide arbitration. After the Concepcions were charged sales tax on the retail value of phones provided for free under their service contact, they sued AT&T, and their suit was consolidated with a class action alleging false advertising and fraud. The district court denied AT&T’s motion to compel arbitration. The Ninth Circuit affirmed, reasoning that the Federal Arbitration Act, which makes arbitration agreements valid and enforceable except on such grounds as exist to revoke any contract, did not require arbitration because the prohibition on classwide proceedings was “unconscionable” under California law. The Supreme Court reversed, stating that arbitration agreements must be placed on equal footing with other contracts and California’s rule was preempted by the FAA and its strong federal policy favoring informal arbitration.
I’ll leave it to my colleagues Walter Olson, our expert on civil litigation, and Roger Pilon, who has written and spoken extensively on preemption, to comment on the particulars of the opinion if they wish. What I will say generally is that (1) we at Cato take the enforceability of contracts quite seriously, but (2) preemption is a very technical area of law that has to be examined on a case-by-case, statutory-provision-by-statutory-provision basis. See, for example, this Cato Supreme Court Review article from a few years ago, and also the relevant section of last year’s “Looking Ahead” essay that presciently previewed the Concepcion case (kudos to Erik Jaffe!). Finally, Roger will be writing an article piece on this term’s preemption cases for the next Review — but you’ll have to wait till Constitution Day in September for that!
The CARE Act Doesn’t Care About Consumers
Last month, I described an unfortunate court ruling that let stand a Texas law designed to protect that state’s in-state liquor retailers from out-of-state competition, a holding that disregarded recent high-court precedent. This built on a podcast I had recorded about a year ago about the relationship between state alcohol regulation under the Twenty-First Amendment (which ended Prohibition) and the Commerce Clause.
As the Wall Street Journal describes today:
The federal government and states have been in a tug-of-war over alcohol regulation since the 21st Amendment passed in 1933. That amendment gave states the right to decide whether to go wet or stay dry. But the Supreme Court in 2005 came down decisively in favor of the feds in Granholm v. Heald. The Court struck down laws in New York and Michigan allowing in-state wineries to ship directly to consumers while forbidding out-of-state wineries from doing the same. The Court ruled that while the 21st amendment gives states the authority to regulate alcohol within their borders, the Constitution’s Commerce Clause bars them from erecting such protectionist barriers.
Still, many states have tried to circumvent Granholm, and the Texas law I previously wrote about is one example. Just like countries erect trade barriers to “help” domestic industries — at the expense of consumers and the economy as a whole — states engage in similar tactices. While the World Trade Organization doesn’t have any authority to police such internal matters, the U.S. Constitution sets out a perfectly good institution for dealing with these blatant Commerce Clause violations: the federal judiciary. And indeed, with some exceptions, courts since Granholm have “corked” protectionist state legislation.
But because Congress can’t leave well enough alone, and at the behest of liquor wholesalers (whose no-value-added middleman profits are obviously threatened by eliminating interstate trade barriers), we now have pending federal legislation called the Community Alcohol Regulatory Effectiveness (CARE) Act. This cutely titled bill purports to give more local control over alcohol regulation — to protect Baptists and bootleggers community values, children’s health, etc. – its actual purpose is to prevent out-of-state producers from selling directly to consumers around the country.
The CARE Act would eliminate the ability for alcohol producers and related businesses to challenge Commerce Clause violations in federal court. That’s not a good thing, as we’ve noticed in every other industry, such as insurance, where Congress has abdicated its constitutional authority to maintain the channels of interstate commerce clear of state interference. As the Journal again puts it:
You can bet your favorite case of California cabernet that Care will reduce choices and raise prices for consumers, just as McCarran-Ferguson has done in the insurance market. From what we’ve gathered through the grape vine, the main groups backing this bill are alcohol wholesalers. They serve as the middlemen in over 90% of transactions between wineries and retailers, and they account for up to 25% of the price of every bottle of wine. Wholesalers have convinced 57 Members of Congress, including 28 Republicans, to co-sponsor Care. Last year 153 Members, including 94 Democrats and 59 Republicans, co-sponsored a similar bill.
The trick here is that the wholesalers lobby is trying to play the “state sovereignty” clause, explaining that they’re just federalists trying to fight a one-size-fits-all national regulatory Leviathan. A clever maneuver in the Tea Party era, to be sure, but one that forgets that one of the main purposes of the Constitution — the very reason James Madison called the Constitutional Convention — was to eliminate interstate barriers to commerce; how else could the fledgling republic’s economy grow?
Congress would never give states the power to stop Apple or J. Crew or any other retailer from shipping its products directly to consumers. It should be no different with alcohol.
Supreme Court Denies Expedited Obamacare Review
That the Supreme Court declined to take up the Obamacare litigation before even a single appellate court had ruled on it is neither surprising nor game-changing.
Virginia Attorney General Ken Cuccinelli’s cert petition, whatever its merits (which were several), was a long-shot to begin with as a matter of practice and procedure. Cato, like all other interested parties, has continued filing briefs in and commenting on the various cases on appeal around the country.
The only noteworthy point here is that Justice Elena Kagan apparently participated in the consideration of the petition, which indicates that she won’t be recused when one of these cases does hit the Court. This too isn’t terribly surprising: I’m still digging through the documents regarding her involvement (or lack thereof) in discussions about the litigation when she was solicitor general, but there does not as yet seem to be a “smoking gun” requiring recusal.
In any event, see you in Richmond on May 10 for the Fourth Circuit argument in the two Virginia lawsuits.
Boxing Gym Scores Knockout Blow for Property Rights
Last month, I wrote about a major eminent domain struggle in National City, California. City officials had decided to declare almost seven hundred properties blighted even before conducting any sort of blight study, which eventually turned out to be riddled with errors.
At the center of the fight is a private, nonprofit boxing gym that has helped keep hundreds of at-risk kids in school and off the streets. The city wanted to bulldoze the center so a wealthy developer can build luxury condos and stores.
In 2007, the Institute for Justice teamed up with the gym and filed suit to stop the city from taking the property, and here’s video about their legal fight:
Four years later, IJ scored a knockout blow against eminent domain abuse: Last Thursday, the Superior Court of California struck National City’s entire 692-property eminent domain zone and found that National City lacked a legal basis for its blight declaration.
This is a major victory for California property owners, and the first case to apply the property reforms that the state enacted to counter the 2005 Kelo decision. Learn more about the victory here.
I previously wrote about eminent domain shenanigans here and you can read more from Cato on property rights here.
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