The New York Times Trashes Property Rights

The Supreme Court heard oral argument last week in Arkansas Game & Fish Commission v. United States. At issue is whether a series of recurring floods induced by the U.S. Army Corps of Engineers count as a taking under the Fifth Amendment, which requires the government to pay just compensation when property is taken for a public use. As I reported on Thursday, Deputy Solicitor General Edwin Kneedler came in for some very tough questioning before the Court, particularly when he tried to persuade the justices that the Army of Corps of Engineers should be free to unleash destructive flood waters on land located downriver from a government dam without incurring any liability whatsoever under the Takings Clause. All things considered, the argument did not appear to go so well for the deputy solicitor general.

The editorial board of The New York Times apparently also took note of Kneedler’s troubles, and in predictable fashion, the Gray Lady has come out with an unsigned editorial urging the Supreme Court to give property rights the short end of the stick in the case. “If [the Army Corps of Engineers] and other agencies that manage natural resources for the government had to worry about liability for takings for every management decision,” the Times opined, “they would lose the flexibility they need.”

Keep in mind that the “flexibility” under review in this case produced six consecutive years of government-induced flooding that caused what a federal trial court calculated to be $5.7 million dollars in damage and destruction. As Justice Antonin Scalia remarked during the oral argument, “The issue is who is going to pay.... Should it be everybody, so that the government pays, and all of us pay through taxes, or should it be this--this particular sorry landowner who happens to lose all this trees?”

You may have noticed that I used the word “predictable” to describe the Times’ editorial. That’s because when it comes to property rights, The New York Times has a long and dismal record of trashing the Takings Clause. As Matt Welch noted in Reason’s October 2005 issue, not only did the newspaper editorialize in favor of the government’s bulldozers in the Supreme Court’s notorious eminent domain ruling in Kelo v. City of New London, the Times even acquired its current swanky midtown headquarters thanks to eminent domain. As Welch wrote:

Bruce Ratner, president of the real estate development company working with the Times on its proposed new Eighth Avenue headquarters, called the project a "very important testament to our values, culture and democratic ideals."

Those "values" and "democratic ideals" included using eminent domain to forcibly evict 55 businesses--including a trade school, a student housing unit, a Donna Karan outlet, and several mom-and-pop stores--against their will, under the legal cover of erasing "blight," in order to clear ground for a 52-story skyscraper. The Times and Ratner, who never bothered making an offer to the property owners, bought the Port Authority-adjacent property at a steep discount ($85 million) from a state agency that seized the 11 buildings on it; should legal settlements with the original tenants exceed that amount, taxpayers will have to make up the difference. On top of that gift, the city and state offered the Times $26 million in tax breaks for the project, and Ratner even lobbied to receive $400 million worth of U.S. Treasury-backed Liberty Bonds--instruments created by Congress to help rebuild Lower Manhattan. Which is four miles away.

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  • FD||

    "That’s because when it comes to property rights, The New York Times has a long and dismal record of trashing the Takings Clause."

    As distinguished, this morning, from its long and dismal record of trashing most of the enumerated rights of individuals. Well, unless they pertain to NYT employees and management.

  • Killazontherun||

    It says there right in the first amendment that the press is a protected class with rights unique to them. What, that simply means anyone is allowed to print their own materials without a censorious body governing them? Nah, couldn't be. That leads to anarchy. Somalia and Roadz!

  • Pro Libertate||

    Really, why should government be liable for any of its actions? After all, it's all done for the collective good.

  • Zeb||

    It seems to me that whether or not the current owners of the damaged property knew that the land was subject to flooding when they bought it is important here. Whether or not the damage to the property is a taking would seem to me to depend on this.

  • Rights-Minimalist Autocrat||

    They didn't need to be told about the flooding. It's right there in their copy of the social contract.

  • Tulpa Doom||

    "Subject to flooding"? We're not talking about natural floods here. It's a human decision.

    That's like saying, well, those 52 businesses the NYT pushed out of the way to make room for their building knew NYC was a statist, corrupt shithole that frequently stole people's land for politically connected developers when they bought it, so they're not entitled to compensation.

  • Zeb||

    I still think it matters somewhat whether the Army Corps just started flooding someone's land one day, or if someone purchased land that they already knew was going to get flooded from time to time. I'm not saying that makes it necessarily not a taking, but I think it is something to consider.

  • Raston Bot||

    I would accept that argument over the COE's. At least it's not bullshit.

  • R C Dean||

    All things considered, the argument did not appear to go so well for the deputy solicitor general.

    Where have we heard that before?

  • Slithery D||

    Nuremberg?

  • Rights-Minimalist Autocrat||

    “If [the Army Corps of Engineers] and other agencies that manage natural resources for the government had to worry about liability for takings for every management decision,” the Times opined, “they would lose the flexibility they need.”

    Friedman: "So we should be more like China!"

  • Nephi||

    Property rights are the thin end of the anarchist wedge!

  • Fist of Etiquette||

    The only way to defend your property rights is with Gatling guns.

  • Kwanzaa Cake||

    Government is just another name for things we do together. Like flooding some dude's land, refusing to pay him a dime for it, and then employing a huge swarm of lawyers to persuade the Supreme Court that said dude derserves jack squat.

  • Pro Libertate||

    This is one of the things I kept nodding my head to when I read Bastiat's The Law recently--the concept that the government only has the rights we have individually and no more. There's no magic transformation because something is labeled government.

  • The Late P Brooks||

    “If [the Army Corps of Engineers] and other agencies that manage natural resources for the government had to worry about liability for takings for every management decision,” the Times opined, “they would lose the flexibility they need.”

    And if policemen were held personally accountable for their actions, they might not beat homeless people to death. Oh, the HORROR.

  • Paul.||

    . All things considered, the argument did not appear to go so well for the deputy solicitor general.

    You know who else appeared to not do so well in front of the justices yet ultimately won his case?

  • Paul.||

    “If [the Army Corps of Engineers] and other agencies that manage natural resources for the government had to worry about liability for takings for every management decision,” the Times opined, “they would lose the flexibility they need.”

    You know who else complains about lost "flexibility" when the government doesn't have a free hand to do whatever it wants?

  • Alex||

    I look forward to Roberts' "if you can imagine a constitutional alternative" reasoning.

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