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Today in the Community: December 16, 2011

Today in our discussion of Sackett v. EPA and property rights we ask: to what extent should regulation of property be left to the states, free from federal oversight?  In other words, do constitutional federalism principles restrict Congress’s authority to enact environmental laws or other legislation that implicates private property rights?  Conversely, do environmental problems call for a unified, national set of rules that should displace state regulation?

Highlights from yesterday follow the jump.

Virginia Albrecht – 1 Promoted Comment

Other comments have set forth the legal analysis demonstrating that Congress surely intended compliance orders issued under the Clean Water Act to be subject to judicial review. But in addition to the legal point, there are sound policy reasons why immediate judicial review is necessary. Whether a particular property has “wetlands” as defined by the Federal Wetland Delineation Manual and whether the wetlands constitute “waters of the United States” is not a matter easily discernable by anybody. Delineating a wetland and its boundaries is a highly technical matter, and the legal status of a wetland — ie, whether it is a water of the U.S. — is equally murky. Despite two Supreme Court rulings in the last 10 years rejecting broad assertions of federal regulatory power under the Clean Water Act, EPA and the Corps have refused to conduct a rulemaking that could draw some bright lines to give citizens fair notice what is and is not a “water of the United States.” So it can be the case when EPA or the Corps issues a Compliance Order that there is genuine disagreement, well-founded technically and legally, about whether a given piece of land has waters that require federal permitting. In that situation, an independent review by the courts will assure all involved that the assertion of federal authority has merit and should be honored. Or not. Insulating administrative actions from judicial review only breeds arrogance in the administrative agency and distrust and suspicion in the citizens who find themselves on the wrong end of a questionable compliance order but have no recourse.

Dana Berliner – 1 Promoted Comment

To anyone who litigates in the area of property, today’s SCOTUSblog question “has the Supreme Court adequately enforced constitutional protection of property rights?” has a painfully obvious “no” for an answer. Instead, the Court has assiduously failed to enforce constitutional protections for property rights for the past decade, sharply undermining these vital protections in virtually every area of property litigation.

Kelo v. New London, 545 U.S. 469 (2005), which my organization, the Institute for Justice, litigated, is of course a prime example. The Constitution requires that takings be for “public use.” Upscale private offices and upscale condominiums are self-evidently not being used by the public. And any claim that they would benefit the public in some vague way by paying taxes was fatally undermined by the uncontested evidence presented in the case that there was no market for the project and it would not be built. The Court showed no interest in these serious constitutional problems and allowed condemnation for the public benefit of imaginary jobs and taxes. The project then proceeded exactly as the evidence showed it would—absolutely nothing happened. It lay completely empty for years and now is being used as a dumping area for debris. No construction has occurred.

Meanwhile, the Court has turned down at least three applications for certiorari in follow-up cases to Kelo, where the facts showed evidence of explicit intention to benefit a private party. See Didden v. Village of Port Chester (2007); Goldstein v. Pataki (2008); and Tuck-It-Away v. N.Y. State Urban Dev. Corp. (2010). It has also denied certiorari in a case challenging the failure to give any compensation at all to the nonprofit lessor of a property being taken by eminent domain, despite a crystal-clear split of authority. See City of Milwaukee Post No. 2874 Veterans of Foreign Wars v. Redev. Auth. of the City of Milwaukee (2010).

In the area of regulatory takings, the Court has crafted a jurisprudence that makes it virtually impossible to bring regulatory or inverse takings claims in federal court. Supposedly, one needs to litigate the compensation claim first in state court and then bring the constitutional issues to federal court. However, there is a whole series of cases making it impossible to actually get to federal court later, so virtually no one ever can. And many states have rules that compensation is not available, yet litigants still cannot get to federal court. Takings are the only enumerated constitutional right that the Court has decided to relegate to state courts. Just this term, the Court denied certiorari in Colony Cove Properties v. City of Carson (2011), which would have allowed the Court to revisit this indefensible state of affairs.

For a brief period of time, the Court appeared at least to be protecting owners against “exactions”—attempts by state and local governments to extract property and favors from owners in exchange for allowing them to get building permits. See Nollan v. Cal. Coastal Com., 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994). More recently, localities have switched from demanding property concessions (“give us 5 acres and we’ll let you have your permit”) to cash demands (“give us $30,000 and we’ll let you have your permit”). There is a clear-cut split of authority as to whether such demands are subject to the same analysis as demands for property. Yet the Court denies review of these cases as well, most recently this term in West Linn Corporate Park v. City of West Linn (2011).

Even in the area of civil forfeiture, where property is taken from people who are neither charged nor convicted of a crime, the Court denies the constitutional protections that should be present. In Bennis v. Michigan, 516 U.S. 442 (1996), the Court found that states could take property from “innocent owners”—people who had done nothing wrong—if the government could show by a preponderance of the evidence that the property was involved in a crime. Then, last term, the Court accepted review and then vacated as moot a case where the City of Chicago seized property with the intention to forfeit it and then provided no opportunity for judicial review for months, if not years. During that time, the victims of these seizures had no access to their cars, property, or cash. They weren’t charged with a crime, but they couldn’t get their property back. The Court dismissed the case because the property owners had not appealed the denial of class certification. See Alvarez v. Smith, 130 S.Ct. 576 (2009). Thus, in Chicago and many other places, such seizures continue without any due process protections.

In short, on basically every type of property issue, from outright takings to due process protections, the Court has failed to protect core property rights. Indeed, it usually avoids even having to rule on these issues by simply denying certiorari despite important issues and obvious splits of precedent. No vital constitutional right should be treated in this fashion by the highest Court in the land. We can only hope that the Court will recognize that it must turn once again to the area of property and begin hearing and deciding these cases.

Recommended Citation: Kevin Russell, Today in the Community: December 16, 2011, SCOTUSblog (Dec. 16, 2011, 9:30 AM),