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Today in the Community: December 15, 2011

Today in our discussion of Sackett v. EPA and property rights we ask: has the Supreme Court adequately enforced constitutional protection of property rights?  Has it gone too far in protecting property rights at the cost of effective environmental protection or other important public goals?

Great comments from yesterday follow the jump.

Philip Thoennes

It is clear that individual property rights, insofar as they exist, are afforded equal status as the other enumerated rights of the Constitution. However, like the protection of speech in the First Amendment, there are times and places when the right is absent. Staying with our speech comparison, the boundaries that have been defined (obscenity, commercial speech, libel, slander, et cetera) create a Boolean status between protected and otherwise, and the same is true of property rights. An owner’s “bundle” of rights is not limitless, and of particular importance here is the common law principle of public trust.
As stated in the Fifth Amendment, “private property shall not be taken for public use, without just compensation.” What then is public use? As the Court said in Kelo v. City of New London, 545 U.S. 469 (2005) and Hawaii Housing Authority v. Midkiff 467 US 229 (1984), property need not be in the public domain to confer benefit to the public. The commons that are collectively owned and cared for, such as clean air and water, should not be restricted by the other rights inherent in private ownership.
The protection of those resources within the public trust does not diminish property rights, for the owner never possessed individual rights to those resources in the first place. Indeed, the public trust is itself a right to that property, as owned by the public and protected by the state. Nothing I read in the Constitution diminishes this fact.

Larry Joseph

The Due Process arguments are interesting, but unnecessary. They only come up in Question 2 if the Sacketts lack pre-enforcement judicial review in Question 1. Under both the APA’s waiver of sovereign immunity and its predecessor, officer suits in equity, a statutory form of review poses no bar to pre-enforcement review if the statutory review in either absent or inadequate. See 5 U.S.C. §703 (“The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action”). In addition to 5 U.S.C. §703, two other APA sections, 5 U.S.C. §§559, 705, should come into play in cases like this to avoid the Hobson’s choice of post-enforcement review (and the accompanying penalties if you lose) versus coerced (and non-recoverable) compliance with an expensive order that may be invalid. Under 5 U.S.C. §559, a subsequently enacted statute like the Clean Water Act does not limit review “except to the extent that it does so expressly.” Under 5 U.S.C. §705, “to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari … may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” Since there is plainly pre-enforcement review and/or relief in cases like this, there is no need to reach Question 2. To some extent, however, the lack of a need to reach the Due Process Clause under Question 2 derives from the Due Process Clause, which informed both the development of equity review and the drafting of the APA.

Anthony Caso

In Dolan v. City of Tigard, 512 U.S. 374, 392 (1994), the Court noted: “We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances.” There is certainly nothing in the text of the Constitution that gives any indication that property rights are not to be afforded “equal” status with protections of speech, religion, trial by jury, or the other rights listed in the Bill of Rights.
At the Founding, protection of property rights was considered synonymous with protection of personal liberty. In 1768, the editor of the Boston Gazette wrote: “Liberty and Property are not only join’d in common discourse, but are in their own natures so nearly ally’d, that we cannot be said to possess the one without the enjoyment of the other.” Editor, Boston Gazette, Feb. 22, 1768, at 1. In 1775, Arthur Lee declared, “The right of property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty”. Arthur Lee, An Appeal to the Justice and Interests of the People of Great Britain, in Present Dispute with America 14 (4th ed. 1775).
Notwithstanding the statement of the Supreme Court in Dolan, however, the courts seem to be more than willing to relegate property rights to poor relation status. As noted in my comment yesterday, the current state or property rights jurisprudence fails to protect against regulatory takings short of a total confiscation. This is not consistent with either the text or original understanding of the Constitution.
Are property rights on par with other rights listed in the Constitution? Consider that property is a focus in the Third, Fourth, and Fifth Amendments (both the Takings and the Due Process Clauses) of the Constitution. Even ignoring the writings of the Founding era, that fact alone should give you the answer.

Recommended Citation: Kevin Russell, Today in the Community: December 15, 2011, SCOTUSblog (Dec. 15, 2011, 9:30 AM),