More on Murr—a response to Rick Hills

New York University law Professor Roderick Hills has posted a thoughtful response to my post criticizing the Supreme Court's just-issued decision in Murr v. Wisconsin. Rick makes two interesting arguments. Neither persuades me that Murr was rightly decided.

Rick's first point is that, if local governments were not allowed to treat contiguous parcels owned by the same person as a single unit for takings purposes, they could try to impose high fees on attempts to subdivide lots, thereby forcing owners to buy a kind of "takings insurance." It is far from clear that anything like this would ever happen. The imposition of such fees would annoy powerful interest groups in most communities, such as politically influential developers, who depend on subdivision to run their businesses. But if it did, the obvious solution would be for courts to rule that such extortion itself qualifies as a taking. When the government attempts to use exactions and fines to undermine constitutional rights in other contexts, courts usually don't hesitate to step in. For example, the government cannot circumvent First Amendment rights by imposing high fees on speakers, or circumvent abortion rights by imposing high taxes on abortion providers. In Rick's scenario, the government would effectively be using a monetary exaction to avoid having to pay compensation for takings.

The Supreme Court has already curbed the use of monetary exactions to circumvent the Takings Clause in the 2013 Koontz decision (another case Rick and I have debated). And Koontz was a considerably less egregious attempt to circumvent the Takings Clause than Rick's scenario.

More generally, government officials can potentially use fines and exactions to try to circumvent virtually any constitutional right. If the courts ban regulations that directly attack the right, it is always possible to try to repress it by imposing fines on those who exercise it, imposing indirect regulatory obstacles on them, and so on. There is no perfect remedy for such shenanigans. But the judiciary has kept them under control in many other contexts. There is no reason to believe that they are any less capable of protecting property rights against them, than any other constitutional rights. If courts are serious about protecting the right in question, they will be alert to attempts to gut it indirectly, as well as frontal attacks on it.

Rick's second point is that victories in Murr and other recent regulatory takings cases brought by property rights advocates won't do much to undermine restrictive zoning, which he considers to be the "greatest attack on property rights" in the United States. He urges us to abandon litigation and instead focus on combating zoning in the political process at the state level.

I very much share Rick's concerns about zoning. It is is indeed a grave menace, particularly to the poor and lower middle class. But even if regulatory takings litigation cannot do much to curb it, that does not mean we should not use it to attack other violations of constitutional property rights. The best should not be the enemy of the good.

Moreover, for reasons I recently outlined here, takings litigation does in fact have some potential for curbing abusive zoning. The more the Takings Clause is enforced against other infringements on property rights, the more it can potentially be used against zoning regulations that undermine those rights in much the same way. It is doubtful that litigation will enable us to curb all or even most abusive zoning any time soon. But it can help take down some of the more egregious practices. As with past efforts to expand protection for constitutional rights and liberties, the best strategy is usually one that combines litigation with political action, rather than relying on either exclusively. That's the lesson of the civil rights movement, the feminist movement, the struggle over same-sex marriage, efforts to expand gun rights, and past efforts to strengthen protection for constitutional property rights.

Here, as elsewhere, we should avoid falling prey to the all or nothing fallacy, under which judicial review must be abjured unless it provides 100% ironclad protection for the right in question, without any exceptions or limitations. Regulatory takings litigation cannot and will not provide perfect protection for property owners. Nor can it forestall all possible efforts at circumvention. But it can do a great deal of good nonetheless.

Rick Hills and I have been debating the value of judicial protection for property rights for a long time now. In this 2011 article, I criticized his and other scholars' claims that federal courts should avoid most efforts to protect property rights, out of respect for federalism.

NOTE: I coauthored an amicus brief in Murr supporting the property owners, on behalf of nine state governments led by the state of Nevada. As with other posts about Murr, what I write here represents solely my own views, not those of the state governments I helped write the amicus brief for. The brief is a pro bono project, and I have no financial interest in the case.