Wednesday, April 29, 2015

Echeverria on The Costs of Koontz

Echeverria_JohnJohn Echeverria (Vermont) has posted The Costs of Koontz (Vermont Law Review) on SSRN.  Here's the abstract:

Robust enforcement of individual constitutional rights protects the interests that the rights are designed to advance. But robust enforcement of individual rights can undermine other constitutionally protected values and impose other social and economic costs. This article catalogues the steep costs of the Supreme Court’s controversial 2013 decision in Koontz v. St Johns River Water Management District. In that case the Court issued two rulings expanding the rights of property owners under the Fifth Amendment to the U.S. Constitution: first, the Court extended the Nollan/Dolan standards to “monetary exactions;” second, the Court ruled that the Nollan/Dolan standards govern takings claims based on permit denials resulting from property owners’ refusal to accept “demands” for exactions. The Koontz Court paid little attention to the cost of these rulings, but it might well have reached a different result if it had paid more attention to them. These costs include: (1) exacerbated confusion about the scope and purpose of takings law, to the detriment of rule of law values and the reputation of the Supreme Court itself; (2) erosion of the principle of separation of powers due to an unwarranted expansion of the judicial role at the expense of the other two branches of government, (3) undermining of the U.S. system of federalism due to the promulgation of one-size-fits-all national judicial rules that limit local political accountability, diversity and policy experimentation; and (4) less efficient and effective protection and management of the use of land and other natural resources. Justice Elena Kagan predicted that the Court would come to “rue” its decision in Koontz, and the broader perspective suggested by this article might help the Court chart a different course on these issues in the future.

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The problem with this article, and with the Koontz decision, is that there is no black letter law, multipronged test stated for when a fact (in this case property) moves from the political system to the court.

But there actually is one. It is the implied test of West Virginia v. Barnette, and it is the test applied in rights cases whether the Court states it or not. If a fact is

1. a fact of human experience
2. which history demonstrates
3. is unaffected by assaults upon it,

then Barnette says that that fact moves from the political system (minimum scrutiny) to the Court (above minimum scrutiny). Although the Koontz Court does not state it (nor did the Court state it in the gun cases), that is the test the Court applied. The problem with the Koontz winners is the problem with all these "new rights" winners (and that is really now a legal movement): they don't demand equitable relief. If you win a case raising the level of scrutiny for a fact, you have the right to demand policies changes which MAINTAIN that fact. The problem is that the recent new rights winners have been anti-gummint folks, you know, just get the monkey off my back. The real story in Koontz is that the monkey keeps coming back. So the iriony for these new winners is that, even though they are anti-gummint, they are going to find that they have to keep cases under the jurisdiction of the court for a long time, demanding policy changes and oversight to see that the fact is MAINTAINED. It's all about maintenance, baby.

Posted by: John Ryskamp | Apr 29, 2015 12:18:51 PM

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