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.