Tuesday, October 4, 2011
In two earlier posts I explored the dangers that inhere in government advocacy in land use cases. I have in mind in particular two cases that the Supreme Court will take up in this new term, Sackett v. EPA and PPL Montana LLC v. Montana. I left off in Part II with the observation that, when the government acts as both a party interested in, and the adjudicator of, property rights, there is reason to doubt that the private landowner will be afforded a reasonable opportunity to contest those issues on which the dispute turns. This doubt exposes a third danger in government advocacy. Government advocacy creates a risk that open questions will be viewed as closed questions, that contestable issues will never be subjected to the light of reason, and that our law of land use will become a muddle as a result.
In criminal prosecutions the government is of course always the advocate against the private-party accused. And criminal law has built up numerous safeguards to ensure that contestable questions, on which the fate of the accused hinge, are exposed to rigorous review. The most well-known are the high burden of proof, which the government bears for every element of the offense, and the constitutional protections that require the government to come by its evidence honestly.
There are no analogous protections in property law because property is not a fundamental right. And those few protections that the law once extended to property owners have all but disappeared. For example, the Supreme Court in Kelo re-wrote the Takings Clause to allow takings for a public purpose. And the doctrine of regulatory takings provides less and less protection for landowners every year. The longer that state and federal regulations of land use are on the books, the fewer the landowners who can claim to have had their property rights taken by those regulations. In legalese, there is a ratchet effect to the background principles of property law against which the regulatory takings doctrine operates. New regulations become old regulations, which set new expectations, which cause property rights to shrink.
Understand me well: I am not suggesting that property should be declared a fundamental right. I am merely suggesting that regulators should tread carefully in light of the facts that it is not a fundamental right, and that property owners therefore do not enjoy the procedural protections that are afforded to a criminal accused.
Criminal law also has strictly-enforced structural protections in place to protect the accused. Landowners receive no such protections. As federal and state agencies proliferate it becomes more difficult for landowners to know who the police and prosecutor are. (Recall that Mrs. Sackett claims to have received verbal permission from the U.S. Army Corps of Engineers.) When the policeman also turns out to both prosecutor and judge, it is impossible to segregate prosecutorial discretion from adjudicatory decision. That is bad for everyone involved.
Update: Michael Lewyn rightly takes me to task for my imprecise remarks about the Kelo decision; the Court crossed the line of principled adherence to the text of the Takings Clause long before Kelo. I should have put "public purpose" in scare quotes.