More Trade News
My colleague Dan Griswold pointed out yesterday some unfortunate editing in the Washington Post. Here are a couple of other trade-related items in the news recently:
I think often the United States has to lead,” Baucus said, noting that what lawmakers come up could be used as a model for other countries to copy.
So the U.S. would saddle its consumers with higher prices in exchange for little benefit environmentally and in the process risk retaliation and alienating countries who it insists are necessary for global cooperation on climate change?
Some leadership.
And it may well be that the Chinese have the jump on the United States here, in any case. They’re proposing to introduce a carbon tax of their own, to prevent double-taxation in the form of carbon tariffs by the developed countries (banned under WTO rules) and to keep the carbon tax revenue — collected, remember, from U.S. consumers! — for themselves, all while seeming to play nice on climate change. I bet those who proposed carbon tariffs are sorry they spoke out now. (HT: Scott Lincicome)
Filed under: Energy and Environment; Trade and Immigration
Thursday Links
- Don’t let the sticker price fool you: The Baucus bill would increase the deficit and cost more than $2 trillion over 10 years.
- There’s no getting around it. There will be cuts in Medicare.
- The Supreme Court hears Alvarez v. Smith, which will affect the constitutional property rights of many people around the country.
- Cato’s David Rittgers debates troop build up in Afghanistan.
Due Process Case to be Decided on Procedural Grounds
Yesterday I went to the Supreme Court to watch the argument in Alvarez v. Smith, a case about civil forfeiture in which Cato filed an amicus brief.
Civil forfeiture, the practice in which the police seize cars, money and other kinds of property that they say has some connection to crime, can raise various of legal and policy issues — from property rights to due process. The question in Alvarez is the basic one of whether people seeking to get their property back are entitled to a prompt hearing before a judge.
Illinois’ forfeiture law allows the State to wait as long as six months before having to prove the legitimacy of the seizure, which proceeding may then be delayed indefinitely for “good cause.” The six plaintiffs in Alvarez — three of whom were never charged with a crime — had their cars or money seized without a warrant for months or years without any judicial hearing, and sued the state and city authorities for violating their rights to due process. The Seventh Circuit found the Illinois law to be unconstitutional because of the delay between the seizure and the forfeiture proceeding and ruled that the plaintiffs must be afforded an informal hearing to determine whether there is probable cause to detain the property. The Supreme Court agreed to review the case at the request of the Cook County State Attorney.
Cato’s brief, joined by the Goldwater Institute and Reason Foundation, supports the individuals whose property was seized. Written by David B. Smith, who previously supervised all forfeiture litigation for the Department of Justice and is now the nation’s leading authority on civil and criminal forfeiture, the brief makes three arguments: 1) Because the Illinois law, unlike the federal Civil Asset Forfeiture Reform Act of 2000, is stacked in favor of law enforcement agencies and lacks protections for innocent property owners, the Court should apply the due process analysis from Mathews v. Eldridge, rather than the more lenient test the State proposes; 2) What has become known as a Krimstock hearing has proven to be an effective and not overly burdensome means of preventing government delay and a meaningful opportunity to contest seizure; and 3) the State’s comparison of the time limits in CAFRA with those in its own law is misleading.
Unfortunately, though some justices appeared at argument inclined to rule that at least some prompt process was due — many other states require that the police quickly come before a judge to make a showing equivalent to the one necessary to get a search warrant — several seemed to want to avoid the due process question for another day because Alvarez was procedurally flawed, so to speak. That is, Justice Scalia pointed that none of the six plaintiffs have a live claim any more – three have had their cars returned, two defaulted on their claims, and the State reached agreement with one – so the case was “moot.” And Justice Stevens noted that the appellate court left it to the trial court to determine the details of the hearing to which the plaintiffs were entitled. (Of course, if the latter “problem” ends up being the key to the case, the Court will simply dismiss the appeal and let the Seventh Circuit’s ruling stand, which is good news — but only for people in Illinois, Indiana, and Wisconsin.)
For more on the case, see George Mason law professor and Cato adjunct scholar Ilya Somin’s oped, and his related blog post at the Volokh Conspiracy.
A New Court Term: Big Cases, Questions About the New Justice
Today is the first Monday in October, and so is First Monday, the traditional start of the Supreme Court term. The Court already heard one argument – in the Citizens United campaign finance case — but it had been carried over from last year, so it doesn’t really count.
In any event, continuing its trend from last term, the Court has further front-loaded its caseload — with nearly 60 arguments on its docket already. Fortunately, unlike last year, we’ll see many blockbuster cases, including:
- the application of the Second Amendment to state gun regulations;
- First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty;
- an Eighth Amendment challenge to life sentences for juveniles; a potential revisiting of Miranda rights;
- federalism concerns over legislation regarding the civil commitment of “sexually dangerous” persons;
- a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley;
- judicial takings of beachfront property; and
- notably in these times of increasing government control over the economy, the “reasonableness” of mutual fund managers’ compensation.
Cato has filed amicus briefs in many of these cases, so I will be paying extra-close attention.
Perhaps more importantly, we also have a new justice — and, as Justice White often said, a new justice makes a new Court. While Sonia Sotomayor’s confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the “wise Latina” speeches that led people to question her commitment to judicial objectivity. Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent — and the first term is not necessarily indicative.
Key questions for the new Court’s dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right. We’ve already seen her make waves at the Citizens United reargument — questioning the scope of corporations’ constitutional rights — so it could be that she will decline to follow Justice Alito’s example and jump right into the Court’s rhetorical battles.
In short, it’s the first day of school and I’m excited.
Filed under: Government and Politics; Law and Civil Liberties
Sixty Years On, China Has Prosperity, Still Needs Freedom
China’s rise from an isolated state-controlled economy in 1949 to the world’s third largest economy with a vibrant nonstate sector is something to celebrate on the 60th anniversary of the founding of the People’s Republic of China.
Under Deng Xiaoping, China’s transition from plan to market began in earnest in December 1978. For more than 30 years now, China has gradually removed barriers to a market system and increased opportunities for voluntary exchanges. Special economic zones, the end of communal farming, the rise of township and village enterprises, and the massive increase in foreign trade have enabled millions of people to lift themselves out of abject poverty.
Economic freedom has increased personal freedom, but the Chinese Communist Party has no intention of giving up its monopoly on power. China’s future will depend to a large extent on the path of political reform. Further strengthening of private property rights, including land rights, would create new wealth and a growing voice for limiting the power of government. It is doubtful that in another 60 years there will be single-party rule in China.
Filed under: General; International Economics and Development
Washington Legal Foundation Opposes GBS Deal
Via James Grimmelmann, the Washington Legal Foundation, a group known for its defense of property rights, filed an objection to the Google book deal earlier this month focusing on concerns related to those I raised in my posts earlier this week.
WLF points out that the Supreme Court has mandated that plaintiffs seeking to certify a class must make a diligent effort to notify all affected class members. According to the high court’s Shutts decision, this effort must include—at a minimum—sending a letter to every identifiable member of the class. In this case, this would mean sending a letter to every address in the US Copyright Office’s database of authors. WLF questions whether this was done; the foundation reports that it never received notification related to any of the books for which it holds the copyrights.
Now, it might be objected that this process would be prohibitively expensive. But if the class is so large that it’s impractical to notify all of its members, then the class is certainly too large to expect a judge to verify that the interests of all class members is being served by the settlement. If the class is too large to notify, then it’s too large to certify.
Beach v. Florida
Cato Adjunct Scholar and Pacific Legal Foundation Senior Staff Attorney Tim Sandefur published an excellent op-ed in the National Law Journal this week on the upcoming Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection:
The case involves a Florida statute determining the boundaries of oceanfront property. Under a 1961 law, the state drew a brand-new line separating public and private land on certain beaches, meaning that some land that would have been privately owned would belong instead to the state. A group of property owners filed suit, arguing that the law deprived them of property without just compensation, violating the state and federal constitutions.
Last December, Florida’s highest court rejected their arguments. It held that, while the new boundary gave the state ownership of the beach land, the former owners actually had no such right to begin with. Despite more than a century of Florida law to the contrary, the court announced that the owners actually only had a right to “access” the ocean, and because the state promised to allow them to keep crossing the land to reach the water, it actually hadn’t taken anything away when it seized the land itself.
Thus, by simply reinterpreting state property law, the court allowed the state to take property without compensation with a mere stroke of a pen. Yet the U.S. Constitution forbids states from confiscating property – even through legal legerdemain – without payment.
[.]
[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless. More than four decades ago, Justice Potter Stewart warned that, without a constitutional limit on the states’ power to determine the nature of property, states could “defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.”
It is well-worth a full read here.
Despite the dreadful decision in the Kelo case several years ago, the fight to maintain the fundamental right to private property continues in our courts and legislatures. Tim and PLF have been doing yeoman’s work in the fight for property rights, and I am proud to team Cato up with them and the NFIB Legal Center in filing an amicus brief on behalf of the rightful property owners in this case. You can download the PDF of the brief here.
Sotomayor Displays a Lack of Deep Thinking
It strikes me that Sotomayor has been fairly forthright in her responses to questioning, not hiding too much behind the tired cliché that she can’t answer a question because it could lead to prejudging a case—certainly far less than Ruth Bader Ginsburg and even John Roberts. Still, on several important issues, such as property rights, national security law, abortion, and even her overall judicial philosophy, she has appeared disingenuous in saying that she has no firm views on the subject—hiding behind precedent again and again as if first principles didn’t exist. In other words, she says a lot—displaying a broad knowledge of cases and legal doctrine—without answering larger questions. She answers questions about what the law should be with what the law is, questions about what the Constitution says with what the Supreme Court has said about the Constitution.
This would be barely appropriate for a nominee to a lower court, who is, of course, bound by precedent. But senators rightly want to know a Supreme Court nominee’s preferred legal theories, what her view of the Constitution is unencumbered by others’ attempts to interpret that document.
The more Sotomayor speaks, the more it becomes clear that these types of nonanswers, this inability to see (or lack of desire to express) a big picture view, is her own essence. It continues a pattern that is evident from her judicial opinions, which are mostly unremarkable and, in the neutral sense of that term, unimpressive. For all her career success and a personal story we should all celebrate, she is an average judge who apparently gives little thought to the broad swath of law and where her rulings fit into that.
That is, Sonia Sotomayor is not a Cass Sunstein or Larry Tribe or Elana Kagan or (fellow circuit judge) Diane Wood. She is not a scholar or an ideologue. Her liberality is reflexive and warmed-over, a product of the post-modern educational environment that formed her in the 1970s—complete with ethnic activism—but not an intellectual edifice. This does not mean she isn’t a danger to liberty and the rule of law, or that her votes and opinions won’t harm the Constitution. But it does indicate that, for all her bluster about being a “wise Latina,” she is little more than a left-leaning empty robe.
CP Townhall
The Sotomayor Hearings
Nothing has changed in the six short weeks since Sonia Sotomayor was nominated to the Supreme Court: she remains a symbol of the racial politics she embraces. While we celebrate her story and professional achievements, we must realize that she — an average federal judge with a passel of unimpressive decisions — would not even be part of the conversation if she weren’t a Hispanic woman.
As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the “wise Latina” denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.
At next week’s hearings, Sotomayor will have to answer substantively for these and other controversial views — and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.
Good News: No Eminent Domain for Flight 93 Memorial
Whether the federal government should be building a $58 million memorial to the heroic passengers on United flight 93, who thwarted the plot to crash a fourth plane on September 11, is a question that has yet to be asked in Washington. But it clearly is improper for the authorities to acquire land for the memorial through eminent domain.
Thankfully, Washington has backed down from its plans to seize the property.
Reports Tony Norman of the Pittsburgh Post-Gazette:
Yesterday, the U.S. government announced that it wouldn’t resort to eminent domain to seize land in Somerset, Pa for the proposed Flight 93 memorial. This is good news for fans of the concept of private property. When the National Park Service announced that it would seize the land from the seven property owners for the memorial rather than pay the landowners what they were asking for the lots, you didn’t have to be a libertarian to know something unjust was happening. The National Park Service was engaging in behavior that was fundamentally un-American, anti-democratic and an affront to the concept of property rights. Sure, the U.S. Supreme Court affirmed the government’s right to do such a thing in the name of the public good, but it was questionable whether a memorial to a plane load of heroes that crashed in a field on 9-11 outweighs the rights of the current owners to use the land as they see fit. Fortunately, the government has declined to grab the final 500 acres it needs for its $58 million, 2,200 acre 9-11 memorial and national park.
The United 93 passengers embody the best of America. Commemorating their heroism should be done in a manner that best reflects the values they were defending.
Richard Epstein on Sotomayor
Cato adjunct scholar Richard Epstein of the University of Chicago and New York University, finds much to worry about in Judge Sonia Sotomayor’s nomination to the Supreme Court:
The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court’s jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.
Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the “public use language.” Of course, the takings clause of the Fifth Amendment is as complex as it is short: “Nor shall private property be taken for public use, without just compensation.” But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.
I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”
Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court.
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].
Filed under: Foreign Policy and National Security; International Economics and Development; Political Philosophy
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).
Filed under: Government and Politics; Law and Civil Liberties
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.
Filed under: Government and Politics; Law and Civil Liberties
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.
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