Tuesday, December 4, 2007
Conservative critics of the reviled 2005 eminent domain decision of Kelo v. City of New London face the dilemma that their criticism amounts to an argument for judicial “activism” in “legislating” over the heads of the people’s elected representatives. Despite considerable reaction to Kelo in the halls of the state legislatures, its effects continue to reverberate. Yesterday, a U.S. Court of Appeals held that a rent control law does not violate the Constitution, citing Kelo as precedent. (The case is Action Apartment Assoc. v. Santa Monica Rent Control Board. No. 05-56533 (U.S. Ct. App. 9th Cir. Dec. 3, 2007.)
Landlords in Santa Monica, which like much of the Los Angeles area is both diverse and expensive, argued that changes in the housing market have made the city’s rent control laws (first adopted in 1979), especially rules that make it difficult to evict residents, both “arbitrary and irrational.” But Kelo and other precedent hold that a court must defer to a legislature, even in the face of factual evidence that the later’s decision was unwise or outmoded. The federal court cited a precedent from 1991 that rent control “substantially alleviated hardships to Santa Monica residents.” The court did not add, but could have, that even if it could be shown that more renters are harmed by the laws than helped, it is up to the legislatures, not the courts, to make these policy decisions. As conservatives are wont to say, if you don’t like a law, don’t complain to a court; rather, tell your elected representative: “There oughta be a law!”
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