The Courthouse Crusade Against Government

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The Takings Movement

How far are these right-wing activist judges willing to go to stretch and distort the Constitution in support of this anti-government ideology? Consider the disturbing implications of the “takings” legal movement. The Fifth Amendment has a “Takings Clause” that stipulates that the government must pay private property owners if it “takes” or expropriates private land for public use. A typical example is when a government takes property by eminent domain to use for a freeway or for an urban renewal project. The meaning of this clause has always been quite specific and very narrow – if the government physically takes your land, it must pay you. But libertarian and conservative legal scholars have tried to extend the idea of takings to mean that the government must pay private property holders, such as corporations, for complying with regulations. They argue, for instance, that if complying with an environmental regulation limits the way a business can use its land, that is a “taking” of the land and the government must compensate them.

The political intent of this radical reinterpretation of the Takings Clause is to make government regulation of business so expensive as to be impractical. If a government had to pay businesses to comply with regulations it would soon go bankrupt – so if this interpretation became common, governments would have to drastically reduce their regulatory efforts, particularly as they affect land use. As William Greider has explained:

Because any new regulation is bound to have some economic impact on private assets, this doctrine is a formula to shrink the reach of modern government and cripple the regulatory state – undermining long-established protections for social welfare and economic justice, environmental values, and individual rights. Right-wing advocates frankly state their objective – restoring the primacy of property against society’s broader claims.7

Let’s consider a specific example of how this works. In 1994, the Florida Rock company sued the federal government because the U.S. Army Corps of Engineers denied them a permit to mine limestone from 1,500 acres of wetland in the Everglades.8 The Corps argued that pollution from the mining would destroy large amounts of wetlands that filter water for the Biscayne aquifer and would severely damage critical habitat in the Everglades ecosystem. They also pointed out that even with these restrictions, the company had received offers for the land that were twice the price it had paid. And yet the Federal Circuit court ruled that a “partial takings” of the land had taken place and required the government to pay tens of millions of dollars to Florida Rock for these damages. In one fell swoop, this decision effectively abandoned over a hundred years of the courts’ traditional interpretation of the Takings Clause. This ruling was described by one law professor as “an extremely destabilizing decision, exposing all wetlands regulations, indeed all environmental and land use regulation, to compensation claims.”9

The intellectual godfather of this “takings” attack on government regulation is Professor Richard Epstein of the Chicago Law School. His views make clear just how wide-ranging and revolutionary this constitutional reinterpretation really is. He has written that extending the Takings Clause renders “constitutionally infirm or suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers’ compensation laws, transfer payments, [and] progressive taxation. … It will be said that my position invalidates much of the 20th century legislation, and so it does.”9 In an interview, he justified this extreme position by arguing that “Most of economic regulation is stupid … What possible reason is there for regulating wages and hours? If my takings doctrine prevails, you have no minimum wage laws. That’s fine. You’d have an OSHA a tenth of the size. That’s fine too. You’d have no antidiscrimination laws for privileged employees, which would be a godsend.”11 This notion of “regulatory takings” is so peculiar that even some conservatives have backed off from it. One pre-eminent conservative legal scholar, Robert Bork, has complained that Epstein’s views are “not plausibly related to the original meaning of the takings clause.”12

But the absurdity of this idea has not stopped many right-wing groups from proselytizing for its use. The Federalist Society is very active in recruiting and training lawyers to pursue takings cases in the courts; and several conservative foundations have contributed large amounts of money to further these efforts. Also, the Foundation for Research on Economics and the Environment has sponsored all-expenses-paid seminars on the new takings legal philosophy that have been attended by thousands of federal judges.13 Even more troublesome is that Supreme Court Justice Antonin Scalia has expressed sympathy for this notion of “regulatory takings” and some legal experts have estimated that four of the nine current Justices agree with at least parts of this highly questionable legal theory.

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