This morning, the historic property rights case of Murr v. State of Wisconsin and St. Croix County was argued at the Supreme Court by John M. Groen, PLF’s Executive Vice President and General Counsel. Listen to our Courting Liberty podcast on the events of the day, watch our post argument press conference video from the steps of the U.S. Supreme Court, and view photos from the post argument press conference as well!
In addition to the excitement surrounding PLF’s Supreme Court oral argument today in Murr v. Wisconsin, today is also the day the Senate Judiciary Committee begins its hearings on the nomination of Judge Neil Gorsuch to the Supreme Court.
- Murr Monday coming up
- Tax-lien foreclosure-for-profit scheme rehearing denied
- Union trespass challenge continues
- Get your super-easy injunctions today in the Ninth Circuit!
- Is crony capitalism a public use?
- Loss for rights in mining claims
- Ninth Circuit declines to vacate Levin decision
Murr Monday coming up
We are busily preparing for oral argument on Monday, March 20th, before the Supreme Court of the United States in Murr v. Wisconsin. We’ve had a series of moot courts and strategy sessions to make sure that the Court gets the best argument possible. For those not familiar with the case, the bottom line is that the Murr family acquired two adjacent but separately deeded parcels in the 1960s. They built a small cabin on one lot and saved the other as an investment, with every right to sell it or build another home on it. Now that the property has passed onto the children, the State says that because the land use laws have since downzoned the property, the second lot can no longer be sold or developed. But instead of paying for the taking, the State says that because the Murrs own another lot, they really haven’t lost anything and don’t deserve to be made whole.
Tax-lien foreclosure-for-profit scheme rehearing denied Continue reading
I am interviewed for an article published this afternoon in the Heritage Foundation’s Daily Signal, previewing the procedural aspects of the Senate’s confirmation process for Judge Neil Gorsuch’s nomination to the Supreme Court. Anytime a major decision is before the United States Senate, the 60 vote majority rule plays a role. This article lays out the different ways that the Senate can get to a majority to confirm Gorsuch, including some parliamentary details that interested readers will want to learn about. Seriously, had you ever heard of the Two Speech Rule before?
There’s more than one way to skin a cat (or so I’ve heard). Well, there’s also more than one way for the government to prevent development on private property. Damien Schiff and I recently published an OpEd in the Country Journal for Acton and Agua Dulce about a new state law that has a big impact on property rights for many rural landowners.
Passing a law that prohibits all development at particular locations is within a state’s police power. However, when government takes away all economically beneficial use of a property, the Takings Clause of the Fifth Amendment to the U.S. Constitution requires government to pay just compensation to the owner. Because paying for property can get expensive, government often tries to regulate away substantial property rights, but (under some questionable Supreme Court precedent) leave enough rights that the compensation requirement isn’t triggered.
This week, the Federal Trade Commission (FTC) launched an exciting new website for its recently formed Economic Liberty Task Force. Aside from signaling how serious the FTC’s Acting Chairman, Maureen Ohlhausen, is in using the commission’s resources to advocate for occupational licensing reform, the website will also serve as a valuable resource for reformers. For example, the task force is collecting various studies, articles, papers, legislation, and other relevant sources, and making them available in one place on the website. Going forward, academics, politicians, litigators, and others should be able to reference the collection of materials produced by various experts in the field to address the licensing issue of the moment. To assist the FTC in compiling material for the website, you can send your ideas and materials to EconLibertyTaskForce<at>ftc.gov. Kudos to the FTC for creating the site and I look forward to monitoring its progress and putting it to use.
The Congressional Review Act (“CRA”) defines “rule” broadly, to include any regulatory agency document that impacts the general public. The Congressional Review Act adopts the definition of “rule” from Section 551 of the Administrative Procedure Act, with some modifications. Specifically, for the purposes of the CRA, a “rule” is an “agency statement of general … applicability and future effect designed to implement, interpret, or prescribe law or policy ….”
Among those agency decisions that are reviewable under the CRA are public land withdrawals made by the Secretary of the Department of Interior. The presumption under federal law is that most federal land can be used for many purposes. Land withdrawals are decisions that prevent certain, otherwise legal uses on public land. Withdrawals can be made for up to 20 years, but may be extended indefinitely, and are most often implemented to prevent new mineral development. Most withdrawal decisions affect fewer than a couple hundred acres. Others, however, withdraw hundreds of thousands, or even millions of acres.
Eminent domain—the sovereign’s authority to take private property without the owner’s consent—is a terrible and awesome power, which is why the nation’s founders placed two key restrictions on its exercise: that government shall not take property unless it is for a valid public use and just compensation is paid.
Those restrictions are essential to the fight against eminent domain abuse. Take, for example, the public use requirement. That restriction is supposed to police against powerful private interests using the government’s power to circumvent the private market to take private property for their own private uses. But often, courts allow private parties to direct or influence eminent domain decisions in the name of economic development. The best example of such abuse is the recent decision Kelo v. City of New London, 545 U.S. 469 (2005), in which the United States Supreme Court held that the city could lawfully condemn 115 privately-owned properties and homes in the hopes that private interests would redevelop the neighborhood into an office park with hotels and restaurants, resulting in more property taxes and jobs for the community.
In response to that shocking decision, forty-four states enacted laws or amended their state constitutions to strengthen protections against that particular type of eminent domain abuse. But—just like the Constitution’s public use clause—legislative protections are only as meaningful as the government’s willingness to abide by them.
PLF filed an amicus brief asking the Louisiana Supreme Court to consider this very point in the case, St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., LLC. There, an appellate court upheld the port district’s decision to condemn Violet Dock Port’s property and on-going business in order to hand it over to a competitor business—in the name of economic development.
PLF’s brief argues that the economic development rationale is frequently used to circumvent the constitutional prohibition against private takings. Moreover, that rationale is easily gamed to benefit the rich and politically connected at the expense of poor and minority communities.
The Oregonian has published my op-ed on PLF client David Hansen, who was fined $30,000 for making marketing drawings without an architect’s license. As I write in the op-ed:
David’s story is just one example in a trend of licensing bodies interpreting their authority broadly to prevent people from competing with licensees. Both ends of the political spectrum are increasingly recognizing that occupational licensing has simply run amok. Advocates justify licensing laws in terms of public health and safety. But time and time again, studies have shown that in reality, these laws are often nothing more than entrenched business interests erecting barriers to competition. The result is to burden people who need economic opportunity, stifle innovation, and drive up prices for consumers. Worse, occupational licensing laws have a disproportionate effect on minorities and politically powerless groups, who do not have the clout to protect themselves from abusive legislation.
Readers might be having deja vu. That’s because last year, I testified on behalf of PLF clients Danell and Ron Perlman in support of a similar bill. That bill passed, but was vetoed by Governor Sandoval based on purported “safety concerns.” Of course, those concerns are non-existent. The repeal bill left in place the Transportation Authority’s ability to enforce health and safety regulations. It simply got rid of the anti-competitive and unconstitutional requirement that businesspeople ask their competitors for permission before starting their business. If anything, the repeal bill freed up resources for the Transportation Authority to enforce laws that actually protect public safety.