Like Mother, Like Son


by Timothy Sandefur

Justice Sandra Day O'Connor's dissent in Kelo was an excellent piece of work, but it contained one very sour note. That was her attempt to rationalize her dissent in this case with the opinion she wrote in Hawaii Housing v. Midkiff, in which she upheld one of the most extreme abuses of eminent domain in 20th century law. The Midkiff case set the stage for Kelo, and Justice O'Connor knew it when she wrote the older decision in 1984. When that chicken came home to roost, she tried to say she hadn't meant it, but by then it was much too late.

Alas, O'Connor's perfidious inconsistency in Kelo was typical of a justice whose property rights decisions were anything but principled and anything but consistent. In fact, it was typical of Justice O'Connor's decisions in general, which usually avoided any clear rules, and tried instead to split the baby, or come up with touchy-feely rules that could never be applied in a principled way in practice.

This editoral against Arizona's Prop. 207 by Justice O'Connor's son Scott shows that the apple doesn't fall far from the tree. The Arizona proposition would require government to compensate property owners whenever the government confiscates their property through a regulation (as as well as when it takes the land outright through eminent domain), but contains exceptions that allow government to protect the public health and safety without compensating property owners.

"Our national law," he writes, "recognizes that there are winners and losers in land use regulation–but that compensation is appropriate only when the government acts to deny essentially all reasonable use of a property, because only then does the local government's exercise of its police powers through planning and zoning rise to the level of an eminent domain taking." Yes, and what that has meant in practice is that when the government prohibits you from using 99% of your land, you get no compensation at all. In the Palazzolo case (in which Justice O'Connor wrote an awful concurring opinion), the landowner's $3 million property was reduced in value to about $200,000. But he got nothing.

Only people who are interested more in "pragmatism" than in principle could cheer such a result.

It's telling that although Scott O'Connor lists the various cases on regulatory takings, he cannot name one in which the property owner received compensation for the taking of his property under the Penn Central decision. That's because the Supreme Court has never compensated a property owner under that test. And although the Supreme Court said in the Lucas case that a total prohibition on development would be a taking, and said in a case called First English that government must compensate property owners even when it takes property temporarily–it then said in the Tahoe-Sierra case that a temporary, total prohibition did not require compensation. These things are not logically consistent. Yet they are the law because "pragmatic" judges wanted to allow government to control how you use your land.

Only at the end do we get Mr. O'Connor's real argument: for government to compensate property owners would cost a lot, because we take so much away from property owners right now: "taxpayers [would] pick[] up a brand new bill for billions of dollars in takings claims that follow as planning decisions are rendered." In other words, since we can't afford to compensate people for all the things we steal, we shouldn't have to pay. Well, it's true that it would be cheaper to just take things rather than paying for them. But principled folks call that "theft."

Yet it is what the Supreme Court allowed in Tahoe-Sierra, when the Court said, "A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decision-making." In other words, since we can't afford it, we should just not have to pay. That's justice? No, it's the "pragmatic" way to avoid clear principles, and to allow bureaucrats to run your life. And yes, Mom was in the majority.