Supreme Court Deals Unanimous, Welcome Blow to Administrative State in Frog Case

Unanimity is elusive in today’s America but the Supreme Court achieved it last week. Although the dusky gopher frog is endangered, so are property rights and accountable governance. Both would have been further jeopardized if the frog’s partisans in the U.S. Fish and Wildlife Service (FWS) had gotten away with designating 1,544 privately owned Louisiana acres as a “critical habitat” for the three-inch amphibian, which currently lives only in Mississippi and could not live in the Louisiana acres as they are now. The eight justices (the case was argued before Brett Kavanaugh joined the court) rejected both the government’s justification for its designation, and the government’s argument that its action should have received judicial deference, not judicial review.

The Consequences Of Land Ownership

“If a man owns a little property, that property is him.…it is part of him….in some ways he’s bigger because he owns it.” 
                                                              —John Steinbeck, The Grapes of Wrath

Property rights are the most fundamental institution in any economy and society. They determine who makes decisions about valuable resources and who captures the economic gains from those decisions; they mold the distribution of income, wealth, and political influence; they set time horizons and investment incentives; and they define who will take part in markets. These attributes are well recognized among economists for spurring economic growth.

But economists have missed another equally important characteristic of private property rights that has long been emphasized in philosophical, legal, and historical literatures and is captured in the quote from John Steinbeck above. Individual owners are more confident, self-reliant, and entrepreneurial than non-property owners. Where access to property is widespread, politics are more stable. Owners have a stake in the existing political regime. Moreover, people acquire property through the market and do not mobilize for forced redistribution using the power of the state through revolution and revolt. They expect property rights to be secure and view government regulation with suspicion. The use and trading of property assets is seen as a positive sum game. With broad property ownership and market participation, the state is less important than the market, and the economy in turn is less centralized, more atomistic, market-based, and supportive of entrepreneurship. This description characterizes the United States from its colonial beginnings through the 19^th century and generally on to today.

In contrast, in countries where property ownership is highly skewed and access to ownership open only to elites, non-owners view things differently. Acquisition of property, wealth, and political power can only occur through capture and then enlistment of the state, as occurred in the extreme in 1789 France or 1917 Russia, or is reflected in recurrent political upheaval and redistributions characteristic of Latin America with its many disaffected populations, military revolts, and coups that have occurred since colonial times. This political uncertainty and lack of overall optimism and entrepreneurship has contributed to slower long-term economic growth than a region so rich in natural resources might have otherwise enjoyed. Why has the southern half of the hemisphere had such a different long-term experience than the northern half? Why has there been more ongoing economic growth and political stability in the North than in the South? Differences in the ownership of land is the key.

WSJ Opinion: Westchester Beats Obama

The feds concede that the suburb’s zoning laws aren’t discriminatory.

Westchester County Chief Executive Rob Astorino spent seven years fighting Obama-era Department of Housing and Urban Development accusations that his county’s zoning laws are racist. Now HUD has conceded that the suburban New Yorker was right all along.

In a one-paragraph memo sent to Westchester recently, HUD Regional Director Jay Golden accepted the county’s latest report demonstrating that local zoning laws are race-neutral. Westchester was required to produce this “analysis of impediments” to housing as part of a 2009 legal settlement between Mr. Astorino’s Democratic predecessor, Andrew Spano, and a liberal activist group.

Mr. Astorino called HUD’s memo a “vindication,” and it is—not least because Westchester demonstrated as early as 2010 that the county didn’t have racially exclusionary zoning practices. Westchester’s residents live where they want and can afford to live. Between the 2000 and 2010 censuses (the most recent available), the county’s African-American and Hispanic populations rose 56%.

The Obama Administration had a larger social and political agenda, which was to use federal anti-discrimination law as a battering ram to rewrite local zoning laws. Westchester would be the model for the rest of the country, and as a Republican Mr. Astorino was an ideal foil to portray as a racist and then point to as a precedent to force racial housing quotas on neighborhoods across America.

The Pain and Dubiety of Hirst

The Supreme Court’s erroneous decision in Hirst http://www.courts.wa.gov/opinions/pdf/914753.pdf  has been a lesson in pain demonstrating poor judicial decision making can cause a web of unintended punishments that go far beyond what is possibly the original intent.  Yes, the environmental cartel’s (tribes, futurewise, agencies, and uncaring politicians) dreamed of result of halting growth in rural Washington was acheived.  And those who stand to profit from the improper route of regulatory legislation from the bench will feel no pain. http://proprights.org/blog/stealing-our-water-one-lawsuit-time-hirst-heist-and-our-diminishing-legislature Yet this decision has caused suburban and rural Washingtonians to doubt the integrity and functionality of our system of governance, spurring a close look at how such a result can come about that has been instructive to those paying attention.

Opinion: Yes, Justice Thomas, the doctrine of regulatory takings is originalist

In his dissent in Murr v. Wisconsin, Justice Thomas opined that “[t]he Court, however, has never purported to ground those precedents in the Constitution as it was originally understood.” and “[i]n my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.”

With all due respect to Justice Thomas, and we respect him greatly, this might not be necessary. The often-espoused notion that the doctrine of regulatory takings sprang forth from the head of Justice Holmes in Pennsylvania Coal v. Mahon is wrong. After this idea was put forth by Justice Scalia (of all people) in Lucas v. South Carolina Coastal Council, a number of scholars set out to refute it, on both historical and doctrinal grounds. Rather than repeat these arguments at length, what follows is a partial list of some of the better scholarly arguments, pro and con, on the subject.

Opinion: Hirst Legislation Inaction

“Morally repugnant”? No, it’s simply what rural families need

The court’s decision has left some families stuck. They’re unable to build on property that they bought before the decision, when new homes had the green light. That’s a big hit to rural economies. The Spokesman-Review noted, “People who purchased property under the old rules now face the prospect of not being able to build on it. Plummeting property values would also impact builders, lenders and county tax collections.”

WSJ Opinion on Regulatory Taking

A Taking by Any Other Name

The Supreme Court extends its bad record on property rights.

The Supreme Court has made some large missteps on property rights in recent years (see Kelo v. City of New London) and on Friday it did it again. The Justices ruled 5-3 that adjacent parcels of land can be counted as a single piece of property, without any compensation to the owner for the change. Count that as a missed opportunity for the Court to brush back burdensome regulations that often amount to unconstitutional takings.

Under the Takings Clause of the Fifth Amendment, property may not be taken by the government for public use without just compensation. In the 1990s four Murr siblings inherited two pieces of adjacent property that their parents had purchased in the 1960s. Ten years later, when the children sought to sell one of the lots, the sale was blocked by a 1975 zoning ordinance that counted the two properties as a single parcel.

The pieces of land had been deeded and taxed separately, but that didn’t sway the majority, written by Anthony Kennedy and joined by the four liberal justices. “The governmental action was a reasonable land-use regulation,” Justice Kennedy wrote, “enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land.” (Murr v. Wisconsin)

The right to sell a piece of property seems fundamental, but the Court offered an exhausting list of considerations that state courts may consider while deciding whether a landowner should expect two adjacent properties to be treated separately or together. Among those, Justice Kennedy offered, are “the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land.” Oh, and also the “background customs and the whole of our legal tradition.” That really clears things up.