USSC eminent domain decision: Defeat for ultra-right 'takings' doctrine?

[AirAmFan]

One Justice's opinion refers explicitly to the HUGE stakes ordinary Americans had in this week's Supreme Court decision upholding local government eminent domain rights over the rights of homeowners.

Had the decision gone the other way, environmental regulations, workplace safety, and even minimum wage laws might have been at more risk in the near future. For more than 15 years, far-right think legal think tanks have been trying to cripple government's Fifth Amendment regulatory powers in favor of unlimited corporate power, and they lost today.

Here are links to the USSC decision and to an article from The Nation on the nutty far-right "takings" doctrine, with excerpts from both.

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From http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/000/04-108.html

"... KELO ... v. CITY OF NEW LONDON, CONNECTICUT...

Justice Kennedy, concurring....

This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U. S. Const., Amdt. 5., as long as it is "rationally related to a conceivable public purpose."... This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses...

A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits.... A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government's actions were reasonable and intended to serve a public purpose."

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And, from http://are.berkeley.edu/courses/EEP131/Gieder.pdf :

"The Nation - October 15, 2001

The Right and US Trade Law: Invalidating the 20th Century, by William Greider

"...The Federalist Society organized a lawyers' forum with a provocative title--"Rolling Back the New Deal"--and its star attraction was Richard Epstein, law professor at the University of Chicago and intellectual lion of the right. Epstein's theory of "regulatory takings" galvanized the movement fifteen years ago when his book Takings: Private Property and the Power of Eminent Domain first appeared, describing an ingenious new constitutional interpretation designed to rein in modern government. Regulations, he argued, should be properly understood as "takings" under the Fifth Amendment ("...nor shall private property be taken for public purpose without just compensation"), so government must pay those businesses or individuals whose property value is in some way diminished by public actions....

"The New Deal is inconsistent with the principles of limited government and with the constitutional provisions designed to secure that end." In telephone conversation, I asked the professor for examples and he obliged with gusto. "Most of economic regulation is stupid.... What possible reason is there for regulating wages and hours?" Epstein said. "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...." His position ... would not invalidate the regulatory laws that legislatures enact. He would merely make the public pay for them. "We will allow the majority to have its way so long as it's willing to buy off its dissenters at a fair valuation," Epstein told the libertarian magazine Reason.

A host of conservative litigation groups have sprung up to argue Epstein's doctrine in court and taken a series of cases to the Supreme Court. So far, the Court's pro-takings decisions have dealt only with subsidiary questions and stopped short of fully embracing Epstein's claim...."

[Inland]

1. That's what I said.

See also the NYT Sunday mag
April 17, 2005, NYT Sunday Magazine
The Unregulated Offensive

On how Thomas is a disciple of Epstein.

[AX10]

2. How would this have affected enviromental regulations?

[AirAmFan]

3. Polluters' property rights would trump the rights of all their victims,

if the USSC adopted the radical right's interpretation of the Fifth amendment. See the second link in the original post, the 200K PDF at berkeley.edu. This article explores how the Federalist Society and right-wing legal foundations are spreading this doctrine among Republican lawyers and judicial candidates.

At risk are not just environmental regulations, but EVERY Federal, state, or local regulation that affects "property". broadly defined.

[AX10]

4. Thanks.