Update, 6:30 p.m., 3/16: the “stupid bill” discussed in this item passed the House, 226-182, with 52 Democrats voting yes and 33 Republicans voting no. It now awaits action in the Senate
Update, 6 p.m., 3/16: The “stupid bill” discussed in this item is on the House floor now. To check on its status, click here and then click where it says, “House Floor Now” or (if you’re catching up a day or two after I post this) “House Floor This Week.”
On March 16, the House will vote on the “Private Property Rights Implementation Act,” which is the Republicans’ latest attempt to inhibit “takings.” “Takings” is a conservative doctrine derived from language in the Fifth Amendment (“nor shall private property be taken for public use without just compensation”). It’s long been recognized that while the government can tear down your house to build a highway, it must pay you for the house. But is it a “taking” when the government passes a regulation that may inadvertently inhibit the profit you can derive from your property? The courts have been wrestling with the idea of “regulatory takings” for some time. (For a lucid discussion from the conservative point of view, click here.) After the Republicans won back Congress in 1994, they tried to pass laws declaring just about everything the government does a “taking,” on the theory that this would roll back regulation. But environmental groups mobilized against the GOP, and the “takings” movement retreated. Now it’s back.
This time, Republican Reps. Charles Canady and Martin Frost are using “takings” as a weapon against regulation by local government. [Correction, 3/15/00: Whoops. Frost is a Democrat. Still, most of the support for this bill is from the Republicans.] They have introduced, and pushed through the House Judiciary Committee, a bill that would “simplify and expedite access to the Federal courts” for developers challenging local zoning rules. Currently, developers are obliged first to wrestle with zoning boards, state governments, and other annoying local pipsqueaks who presume to have an interest in matters like traffic congestion and urban sprawl in their communities. (If you think this is an unfair caricature of the developers’ complaint, click here and read what the National Association of Home Builders says.) When disputes do land in court, federal judges often toss them back to the state courts. The bill’s language would inhibit the circumstances under which federal judges could continue to do that.
The irony, of course, is that Republicans are supposed to be in favor of empowering local government at the expense of the intrusive, heavy-handed federal government. Isn’t that what the “new federalism” (now actually several decades old) was all about? Conservatives are also supposed to oppose judicial encroachment on government decision-making–the process that gave us school busing and the AT&T breakup, among other things. Conservatives, of course, could argue that the League of Conservation Voters, which is campaigning against Canady and Frost’s private-property bill, is equally hypocritical: Don’t liberals like getting the feds, especially federal judges, involved in government decisions? It’s a fair point. Objectively, though, it doesn’t really make sense to federalize local zoning decisions. According to an editorial in the March 15 Washington Post, the rather conservative Judge Frank Easterbrook of the 7th Circuit Court of Appeals complained in a 1994 decision: “Federal courts are not boards of zoning appeals. This message, oft-repeated, has not penetrated the consciousness of property owners.”
To read the bill’s text, click hereand enter“HR 2372” in the search engine at top left. After you click “search,” you’ll see links to the bill as “introduced” and as “reported” (i.e., passed by committee). The latter is the latest version.