The Tyranny of One Man's Opinion

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

Thomas Cromwell was the principal behind-the-scenes fixer for much of the reign of King Henry VIII. He engineered the interrogations, convictions and executions of many whom Henry needed out of the way, including his two predecessors as fixer and even the king's second wife, Queen Anne.

When Cromwell's son, Gregory, who became sickened as he watched his father devolving from counselor to monster, learned that an executioner for the queen had been sent for from France a week before her conviction, he asked his father what the purpose of her trial was if the king had preordained the queen's guilt and prepaid the executioner. Cromwell replied that the king needed a jury to give legitimacy to her conviction and prevent the public perception of "the tyranny of one man's opinion."

In America, we have a Constitution not only to prevent the perception but also to prevent the reality of the tyranny of one man's opinion. The Constitution’s Fifth Amendment makes clear that if the government wants life, liberty or property, it cannot take it by legislation or executive command; it can do so only by due process -- a fair jury trial and all its constitutional protections.

The constitutional insistence upon due process was the result of not only the Colonial revulsion at the behavior of Henry and his successors but also the recognition of the natural individual right to fairness from the government. If one man in the government becomes prosecutor, judge and jury, there can be no fairness, no matter who that man is or what his intentions may be. That is at least the theory underlying the requirements for due process.

President Barack Obama has rejected not only the theory but also the practice of due process by his use of drones launched by the CIA to kill Americans and others overseas. The use of the CIA to do the killing is particularly troubling and has aroused the criticism of senators as disparate in their views as Rand Paul and John McCain, both of whom have argued that the CIA's job is to steal and keep secrets and the military's job is to further national security by using force; and their roles should not be confused or conflated, because the laws governing each are different.

Theirs is not an academic argument. The president's use of the CIA is essentially unlimited as long as he receives the secret consent of a majority of the members of the House and Senate intelligence committees. The secret use of these 37 senators and representatives constituting the two committees as a Congress-within-the Congress is profoundly unconstitutional because Congress cannot delegate its war-making powers to any committee or group without effectively disenfranchising the voters whose congressional representatives are not in the group.

Moreover, the War Powers Resolution regulates the president's use of the military and essentially precludes secret wars. It requires the public consent of a majority of the full Congress for all offensive military action greater than 90 days. That, in turn, brings about transparency and requires a national political will to use military force.

President Obama has formulated rules -- agreed to by a majority of the 37, but not by a majority in Congress -- that permit him to kill Americans and others overseas when he believes they are engaging in acts that pose an imminent threat to our national security, when their arrest would be impracticable and when personally authorized by the president. This is not federal law, just rules Obama wrote for himself. Yet none of the Americans he has killed fits any of those rules.

Last week, the White House revealed that in January, the government launched its 446th drone into a foreign land, and this one killed three Americans and an Italian, none of whom had been targeted or posed a threat to national security at the time of his murder. The drone, which was dispatched by a computer in Virginia, was aimed at a house in Pakistan and was sent on its lethal way without the approval of the Pakistani government or the knowledge of President Obama.

The use of drones is not only constitutionally impermissible but also contraindicated by the rules of war. Drones pose no threat and little danger to those doing the killing. Except when the intelligence is bad -- as it was in the January case revealed last week -- deploying drones is a low-risk endeavor for the country doing so. But Obama's wars by robots produce more killing than is necessary. War should be dangerous for all sides so as to limit its lethality to only those venues that are worth the risk -- those that are vital for national security.

If war is not dangerous, it will become commonplace. By one measure -- the absence of personal involvement by decision-makers -- it has become commonplace already. A mere three years after his self-written rules for the deployment of drones were promulgated, the president has delegated the authority to order drone killings to his staff, and the members of the congressional intelligence committees have delegated their authority to consent to their staffs.

Obama apparently doesn't care about the Constitution he swore to uphold, but he should care about the deaths of innocents. Obama's drones have killed more non-targeted innocents in foreign lands than were targeted and killed in the U.S. on 9/11.

And the world is vastly less stable now than it was on 9/11. The president's flying robots of death have spawned the Islamic State group -- a monstrosity far exceeding even Henry VIII and Thomas Cromwell in barbarity.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The EPA's Clean Coal Dust-Up

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

This past week in the Wall Street Journal, Kenneth Hill, the public utility regulator from Tennessee, joined Kentucky Senator Mitch McConnell in advocating that states boycott the EPA’s Clean Coal Plan (CPP) under the Clean Air Act of 1990. The plan would require the state to reduce the amount of carbon dioxide emissions so that by 2030 they are 30 percent below the 2005 levels. In making his case, Hill challenges EPA administrator Gina McCarthy’s soothing assurances that nothing in the EPA’s Clean Coal Plan will throw a monkey-wrench into coal operations, because “our rule creates a dynamic where cutting carbon pollution and investment decisions align.” That assertion is inconsistent with the report of the North American Electric Reliability Corp., which foresees major threats to transmission reliability, depending on exactly how the Clean Coal Initiative plays out on the ground. Indeed, it is far from clear whether sweeping new measures should be introduced to tackle this problem, especially since the EPA’s own figures show that emissions levels in 2013 were 9 percent below those in 2005.

Hill argues that the states should require the federal government to assume full responsibility for any Federal Implementation Plan, or FIP, that will govern those states that refuse to adopt a state implementation plan or SIP on their own. As of present, it is not clear whether this final confrontation will take place. Before that can happen, the courts will have to resolve the looming challenges to the EPA’s proposed rule, now that the EPA has pushed the envelope of its not inconsiderable statutory authority to regulate pollution.

The most notable opponent to the Clean Air Act is Harvard’s constitutional law Professor Laurence Tribe, who is a paid consultant for the Peabody Energy, whose wholesale denunciation of the EPA’s CPP for “burning the constitution” has attracted a strong dissent in forceful testimony before Congress from his own Harvard colleagues, Jody Freeman and Richard Lazarus, and from Richard Revesz, former NYU Dean and current head of the Institute for Policy Integrity.

The issues are complex and their resolution depends in large measure on understanding the ways in which the EPA’s CPP exercises its power. As is well explained by Mario Loyola in National Affairs, the devils lie in the details. His account is strongly at odds with Revesz’s claim that the EPA’s CPP program is just another chapter in the long-partisan tradition of effective pollution control.

The nub of the difficulty here is this: traditionally, the Clean Air Act pays homage to federalism by having the EPA set National Ambient Air Quality Standards (NAAQs), leaving it to the states to figure out how best to meet the national target in pollution control while knowing that the federal government can override them with its own FIP if the plan is not regarded as sufficient. Typically these SIPS were implemented under Section 112 of the CAA, which left it to the states to decide “the best system of emission reduction” (BSERs) to meet that standard. Generally, these were understood to let SIPs determine what technology to use to reduce pollution on a facility-by-facility basis.

The big difference with the CPP plan is that it takes these BSERs to the next level by announcing that SIPs should address four discrete “blocks” of issues that include modification of facilities but go beyond that to cover substitution of both natural gas and renewable energy for coal, and to taking measures to reduce the demand for energy within the state. Once the EPA proposed these additional measures, it became doubtful that it could act, as it traditionally had done, under Section 112, which deals only with emissions controls.

To avoid this problem, the EPA has asserted that it can regulate carbon dioxide emissions under Section 110, without regard to these limitations. Unfortunately, it appears as if resorting to Section 110 is only possible if regulation cannot be done under Section 112, which could be invoked now that the Supreme Court in its 2007 decision in Massachusetts v. EPA declared carbon dioxide a pollutant subject to EPA regulation. Unfortunately, the official text of the statute is of somewhat uncertain status because of the way in which it deals with two different versions of the 1990 CAA that were not fully reconciled in conference. The printed version limits the power of the EPA, while an alternative reading does not. Judicial decisions have pointed to a narrow reading of the EPA’s authority. Professor Tribe is surely correct to say that the EPA should not be accorded any administrative deference in deciding which version of the law controls. More likely than not, he is also not correct to claim that the printed version, done without an eye to the current controversy, should be accorded presumptive validity. In general, it is wise to have two different pathways to regulate the same types of pollution. Indeed, adopting this reading could abort the CCP before it gets off the ground.

Structurally, however, the CPP is subject to stronger objections that may yet play out in court. It is one thing to let the EPA specify the best technology for controlling pollution from a given source. It is quite another to allow it to venture into regulating the transmission and consumption of electrical power, especially since the first of these tasks is governed by the Federal Energy Regulatory Commission, or FERC, which normally leaves these issues to state control. This peculiar jurisdictional line up means that the FIP may not be able to incorporate any of the last three approaches that the EPA wants to be included in SIPs, at which point slashing carbon dioxide output from coal plants could require wholesale plant closings under the as-yet-stated FIP which may only be able to attack facility emissions directly.

EPA’s McCarthy praises the flexibility of her plans, by noting that the EPA “can look at stringency, timing, phasing-in, glide path,” and a lot else to make sure that grid reliability is not impaired. But therein lies part of the problem, for the question is just how much discretion should the EPA have in making decisions that could cost individual states and firms billions, especially since it appears that its direct regulatory authority to implement on its own only direct regulation of emissions from designated facilities. It looks therefore that the threat of very heavy direct cuts in output could be used to lever states to make alterations in local policy that the EPA is powerless to impose under its own authority. At this point, the crafty game of extending powers through threats does give rise to a serious constitutional challenge, as the EPA seeks to implement indirectly measures that it could not impose directly.

These difficulties are further compounded by the way in which the EPA sets its targets for different states, which, as Hill notes, could vary from as little as 11 percent in North Dakota to 72 percent in Washington. The huge differences are based on various local factors that relate to the ability to control carbon emissions. But the whole approach has to be taken with a grain of salt, given that the harm from carbon dioxide (which is itself the subject of serious scientific dispute, well summarized by Professor Judith Curry) in no way depends on the place from which it enters into the atmosphere, so that there is no issue of singling out dirty targets to clean up traditional forms of pollution in, say, high-sulfur areas.

Indeed, one great tragedy of this entire unfortunate episode is that it pushes further down the road any coherent way to deal with all forms of pollution. As I have previously argued, the best way to attack this problem is to direct attention to pollution outputs and not to elusive BSER standards under which it is not possible to ask the simple question of whether any particular reduction in pollution output is cost-effective. There could be a far more rapid shift to efficient coal plants if the EPA did not erect consistent barriers to getting new coal plants into service.

The huge level of discretion on these matters has given rise to the question of whether the coal companies can challenge the regulations on the grounds that they constitute a taking of private property without just compensation. On this point, Tribe’s claim that they can under current law is wholly unconvincing. The control of pollution lies at the heart of the government’s power to regulate under even the narrowest view of the takings clause. The effort to claim that somehow the EPA’s CPP “singles out” the coal industry for special treatment triggers one of the touchstones for a taking under modern law. But that principle usually applies to single parcels of land, not entire industry groups, so that it is highly unlikely that the coal companies could make out regulatory taking, under of all cases, Penn Central Transportation Co. v. New York City, which I noted in a recent column represents an indefensible expansion of state regulatory power to the confiscation of air rights when no threat of nuisance exists at all.

Tribe’s opponents, such as Revesz, Freeman and Lazarus, are therefore right to ridicule this constitutional argument. But their criticisms do not answer a more serious charge that can be levied against the CPP. Even if the end of pollution control is manifestly legitimate, the choice of means should be subject to higher levels of review than are often applied today. More concretely, the ability to set wildly different targets for different states opens up the real possibility that the EPA could help its political friends and hurt its political enemies. Right now, the courts are far too weak in the way in which they scrutinize this means-end connection in pollution. They should ratchet up their scrutiny of individual EPA determinations on carbon dioxide to see if they bear any relationship to sensible pollution control strategies, which on balance they do not.

At this point, the legal survival of the EPA’s CPP is anyone’s guess. Much will depend on the EPA’s own guidance documents about FIPs, which should come down this summer. But it is dangerous business to let the EPA take the coal industry hostage by this set of aggressive maneuvers. The Supreme Court’s initial wrong was Massachusetts v. EPA, which wrongly held that carbon dioxide counted as a pollutant under the Clean Air Act.

The simple point is that carbon dioxide raises unique issues that cannot be sensibly addressed within the basic Clean Air Act framework, which is why Congress should now legislate to take this confused matter out of the EPA’s hands. One central part of this technology is to ask the extent to which private incentives are likely to reduce overall carbon dioxide output, in light of improved technological efficiencies. A second key element is to develop a constructive national scheme that first updates the EPA’s 2009 endangerment finding on carbon dioxide, and then looks for a more even-handed regulatory scheme that does not hold an enormous dagger over the entire coal industry.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Raisins in the Sun: Federal Government Trying to Leave Farmers Out to Dry

Thomas Warns*

The Supreme Court heard oral arguments last Wednesday in a case that seems almost too absurd to be true – Horne v. Department of Agriculture. The background facts, centering around a New Deal-era law, are hard to believe, but here they are:

The Agricultural Marketing Agreement Act of 1937 granted the U.S. Department of Agriculture the authority to regulate the sale of certain agricultural products, including California-grown raisins, through the use of "marketing orders." The marketing order specific to California-grown raisins directs the Raisin Administrative Committee, a branch of the USDA, to establish a yearly raisin tonnage reserve requirement. The idea was that during the Great Depression, low raisin prices were hurting farmers, who would benefit if prices were stabilized (and raised). The government aimed to achieve this price hike and stabilization by taking farmers’ raisins and adding them to the raisin reserve; lower supply meant higher prices, and the raisins would be sold or given away at a later date they believed was more appropriate.

Every year in February, raisin farmers are told what percentage of their crop is the "reserve requirement" they must turn over to the Committee; failure to do so results in fines and penalties. In 2002 and 2003, the Horne family refused to comply with the USDA’s demands and was fined over $700,000. This case was actually before the Supreme Court two years ago on different grounds (whether they could raise a takings claim before they actually paid the fine), but now is on the docket again on the merits, as a takings question. The federal district court and the Ninth Circuit Court of Appeals have found that there was no “taking” by the government.

The Supreme Court heard oral arguments last Wednesday, and will have to answer three questions: (1) Whether the government's "categorical duty" under the Fifth Amendment to pay just compensation when it "physically takes possession of an interest in property" applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a "condition" on permission to engage in commerce effects a per se taking.

The case looks like an easy win for the Horne family, and it should be. Further, they can take heart in the fact that court watchers found the Justices to be very skeptical of the idea that there was no taking.

The takings clause in the Fifth Amendment states that “nor shall private property be taken for public use, without just compensation.” Here, the government demanded the Horne family hand over their raisins, or pay enormous fines. How could this possibly be defended? The Ninth Circuit’s latest opinion on the case justified the government’s action by stating that the Takings Clause was meant to deal with takings of real property (i.e. land) and not personal property, and further that if it were a taking, the just compensation was the supposed stabilization and increase in price by the government.

Surely, the Fourth Amendment notion of property cannot be applied so narrowly that personal property is not protected – could the government also take one in every five cell phones that Samsung manufactures, without paying just compensation, because there was no "taking"? Doubtful. And in oral arguments, Justice Alito raised that very proposition. Theft does not become legal because the government engages in it. How come we have to pay taxes, you ask – isn’t the government “taking” our money? In the case of taxes, the Constitution explicitly permits Congress to levy them for the common defense and general welfare of the country under Article I.

The second proposition might be slightly stronger for the government – if it was a taking, the stabilized and elevated prices served as compensation. Justice Breyer hinted during oral arguments that the farmers may not have been hurt at all, or may have even been benefited beyond the value of their raisins, from the program. That may be the case, but it is hard to imagine the Horne family spending their time and money fighting this if the program was really such a great deal for them. Indeed, the Horne’s stated that in the year precipitating this legal battle, they surrendered 47% of their raisin crop; after the USDA sold the raisins (often they are sold to schools or prisons at a discount), the USDA took some money off the top for administrative expenses, and returned the Horne family with an amount lower than the total cost to produce the raisins. That does not sound like just compensation. Certainly at the very least, the Horne family could have sold their raisins to the schools and prisons without the compulsory middleman (who might also hurt the raisin farmers by conditioning that portion of the market to lay off market price raisins in favor of discounted ones from the government).

Another laughable defense raised in support of the program is that the government may condition entry into a market on having the ability to relinquish specific, identifiable property. Indeed, the 9th Circuit said that if the Horne family did not like the marketing orders of the USDA, they could plant another crop that was not regulated the same way. That not only ignores any number of personal reasons why the Horne family may prefer to grow raisins (their land is best suited for it, they have expertise from past experience, etc.), but it also destroys the personal autonomy we all ought to enjoy in a free country with a vibrant and open marketplace.

The Supreme Court did not even attempt to answer whether this is a public use. Public use has classically meant taking property so roadways or bridges or courthouses benefiting a whole city or state could be built, not taking raisins from farmers to keep prices higher for consumers. Indeed, if the stated goal of higher raisin prices has been achieved, then the program is benefiting private parties at the expense of the public – the exact opposite of a public use! Even the expansive (and heavily criticized) case on public use, Kelo v. City of New London, would be unlikely to bear such a definition of "public use". Fortunately, the Supreme Court has a chance to invigorate takings jurisprudence, even if it doesn't do so via a more robust "public use" analysis, and make keep us all safer from government’s intrusions.

Personal Note: I have thoroughly enjoyed writing for this blog for the last two years, but sadly my time on the Journal of Law & Liberty is nearing an end. I will graduate in May and hand over the position of Editor-in-Chief to my very capable replacement, Michael Stachiw. I hope to continue writing to the blog occasionally as a guest; however, this is likely to be my last post as a member of the Journal. For that reason, I would like to thank everyone who has been on the Journal the last two years. I have learned so much working with everyone on these blog posts, as well as all the articles we publish. I could not have asked for a better group of friends on the Journal, nor a more capable group of colleagues. To those who read the blog and have read my posts from time to time, thank you for your interest in our Journal, and please keep reading.

Sincerely,

Tom Warns

* Thomas Warns is a J.D. Candidate in the Class of 2015 at New York University, and the Editor-in-Chief for the N.Y.U. Journal of Law & Liberty.

Not Your Grandfather’s FBI

Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

Does the FBI manifest fidelity, bravery and integrity, or does it cut constitutional corners in order to incriminate? Can the FBI cut the cable television lines to your house and then show up pretending to be the cable guy and install listening devices? Can FBI agents and technicians testify falsely and cause the innocent to be convicted, incarcerated and, in some cases, executed?

In 2014, FBI agents in Las Vegas were on the trail of Wei Seng Phua, whom they believed was running an illegal gambling operation out of his hotel room at Caesars Palace. Instead of following him, asking questions about him and using other traditional investigative techniques, a few agents came up with the idea of planting a wiretap in Phua’s hotel room.

They bribed a hotel employee, who gave them access to a place in the hotel where they could disable the cable television wires to Phua’s room. When he called for repair, they showed up pretending to be cable guys, and he let them into his room. They repaired what they had disabled, but they also illegally wiretapped the phones in the room. Then they overheard his telephone conversations about his illegal gambling, and they arrested him. A grand jury indicted him based on what was overheard.

The grand jury was not told of the wire cutting and the con job, but a federal judge was. Last week, he criticized the FBI for conducting an illegal search of Phua’s room, in direct contravention of the Fourth Amendment, which the agents swore to uphold, and he barred the government from using the tapes of the telephone conversations as evidence against Phua. If the government can get away with this, he ruled, then constitutional guarantees are meaningless.

These lawless agents should have been indicted by a state grand jury for breaking and entering by false pretense, but Caesars declined to seek their prosecution. No surprise.

It was surprising, however, when the FBI was forced to admit last week that in the 1980s and 1990s, its agents and lab technicians who examined hair samples testified falsely in 257 of 268 cases that resulted in convictions. Of the convictions, 18 persons were sentenced to death, and of those, 12 have been executed.

Some of these cases were federal, but most were state prosecutions in which state and county prosecutors hired the FBI to perform lab tests and compare hair samples from a crime scene with a defendant’s known hair sample. The faulty lab work and erroneous testimony destroyed the freedom of hundreds and the lives of 12, squandered millions in tax dollars, and impaired the constitutional values we all embrace.

You probably did not hear about the FBI cable guys or the admitted 96-percent rate of false testimony in cases of conviction. That’s because the FBI skillfully diverted your attention.

In an effort to pick a front-page fight with the government of Poland, FBI Director James Comey revealed last week that the very concept of the Holocaust has moved him deeply -- so deeply that he has ordered all new FBI agents to spend quiet time at the Holocaust Museum contemplating its horrors. He argued that the terror of Nazi agents became so commonplace that its wrongness was no longer apparent to them. That’s probably true. The Nazis did so much killing that their acts of killing innocents became commonplace to the killers. Then he blamed the Poles for their own victimization because of the few among them who collaborated with their invaders. This brought the hoped-for fierce blowback from the Polish government and top-of-the-fold criticism of Comey for two days.

Earlier this week, the FBI announced the arrest of eight persons for attempting to leave the United States in order to join ISIS. The actual charge is attempting to provide material assistance to a terrorist organization. These ISIS people are truly monsters. Yet, Americans have a natural right to travel where they want and associate with whomever they please. The test of a truly free country is the right to leave it.

Moreover, this was a controlled FBI sting. The defendants were instigated by and under the watchful eyes of FBI undercover agents. The FBI admits that the defendants never posed any harm. How can it be a crime -- or harmful -- for people to leave the U.S.? If people with evil inclinations want to leave, let them go; arrest them when they return if they cause harm.

For 600 years of Anglo-American jurisprudence, the definition of crime has included the element of harm. No one was harmed by this sting except the taxpayers. Yet, this announcement dominated the news cycle as hoped for.

Why chastise the Poles, who suffered egregiously under the Nazis, in 2015 for the few who collaborated with them in 1942? Why entrap losers who harmed no one into thinking they could freely leave the country and join an army of monsters and then announce their arrest during a bad week? To change the subject; that’s why.

Will FBI agents who lie, cheat, break the law and testify falsely be brought to justice? Will their superiors who condone this be made to answer? Does the FBI work for us, or do we work for it?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Problem With NYC’s Landmark Preservation Laws

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

This year, the New York City Landmark Preservation Commission is celebrating its fiftieth anniversary with, not surprisingly, a triumphant summation of its many achievements: fostering civic pride, protecting property values, attracting tourists, and strengthening New York’s economy.

The Commission’s activities over the past fifty years have indeed altered the landscape of the city. There are now some 1,347 individual landmarks, 114 historic districts, and 10 scenic and 117 interior landmarks. Today, about 27 percent of buildings in Manhattan have the dubious honor of landmark status—dubious because of the enormous costs associated with that designation. Surely, New York has many buildings worth preserving for the cultural and aesthetic benefits that they bring to the city. But it is one thing to accept as legitimate the public ends of the landmark statute and it is quite another to endorse the heavy-handed methods that the Commission uses to apply its mandate.

The law creating the New York City Landmark Preservation Commission was passed in 1965. New York City Mayor Robert F. Wagner signed the legislation in the wake of the 1963 demolition of the old Pennsylvania Station—a Beaux-Arts masterpiece by the great architectural firm of McKim, Mead & White—that made way for the new Madison Square Garden. The purpose of the law was to supposedly preserve New York City’s great and historic buildings from the crass utilitarian dictates of the marketplace.

Though the law was originally well intended, the current rules under which the Commission operates regulate everything from the process by which landmarks are designated to the extensive restrictions on the ability of their owners to make any exterior or interior changes in their structures, down to the last ventilation duct, awning, window opening, and fire escape. The simplest way to think about landmark designation is that it puts the city in the position of part owner of the affected buildings, which then lets it decide how these buildings are maintained and altered, without having to bear anything close to the full financial burden of its decisions. Yet, at the same time, the city only has a tiny budget—under $6 million for the current fiscal year—to manage this far flung enterprise.

The key question here is the touchy matter of who should pay for the benefits that the city imposes. As matters now stand, those costs are born largely by the private property owners, who must bear the losses in market value that come from landmark designation established through a complex political process in which they participate, albeit without effective control. The demand for the extension of these laws—whether by adding new properties to the list, or by tightening the restrictions on the use and renovation of existing properties—is high because the price of that regulation is currently set at zero.

Rest assured that the behavior of landmark commissions and landmark preservationists alike would change rapidly if they had to raise public or private money to fund their prized projects. At this point preservationists, like everyone else, would have to learn to live within a budget, at which point they would moderate their demands so that only the best projects would be landmarked, and only in a way which minimizes the financial burdens to their owners.

This is not so under current practices, that let activists list, or “calendar,” various buildings for landmark designation, at which point their owners must gain Commission approval in order to get work permits for the site, leading to a deterioration in the very properties that need preservation. In an effort to reduce the backlog to that overload, Landmarks Chairwoman, Meenakshi Srinivasan, proposed to remove over 100 buildings from the roster in order to let the Commission devote its limited budget to key properties.

Her sensible proposal was buried under an avalanche of criticism so that the status quo continues. A recent New York Times editorial praises the law on the one hand while lamenting its defects on the other. The Times writes as if scarcity were irrelevant. Mayor de Blasio, the paper contends, has to speed up the creation of new affordable housing units while preserving more of the city’s historic cultures. But at no point does the Times understand that the chief defect of the New York Landmarks Law is its want of a pricing mechanism in making key decisions.

The original and conscious omission of a compensation requirement from the 1965 law led to a famous constitutional challenge of the New York City Landmark Law, which culminated in what ranks as the single most influential “takings” decision of recent times—the United States Supreme Court’s 1978 decision Penn Central Transportation Co. v. City of New York, which offers a textbook illustration of everything that can go wrong in constitutional adjudication.

At issue in Penn Central was a decision by the New York City Landmarks Commission to refuse to allow Penn Central, as owner of Grand Central Station, to build an impressive Marcel Breuer Tower over the station. Simply stated, the claim of Penn Central was that the city took its air rights without compensation, which it had to pay for its plan to go forward. In upholding the city’s position, Justice Brennan twisted the law of takings in ways from which it has yet to recover.

The simplest way to approach the case was to note that the development rights over the terminal were, under New York law (and indeed everywhere else), a recognized interest in property that was routinely bought, sold, mortgage and leased. Indeed, without a strong system of air rights, it would be impossible to sell condominiums or lease office space in any high-rise building.

Normally, the state law of property determines the interests that receive protection from expropriation under the takings clause that provides: “nor shall private property be taken for public use without just compensation.” The clause’s broad sweep applies to all of the many types of property interests, not just the outright ownership of a given parcel of land by a single owner.

In dealing with these takings issues, the traditional lodestar was a famous 1960 maxim of Justice Hugo Black in Armstrong v. United States, that the takings clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” In this instance, the ostensible benefits of taking the development rights were, as everyone insists, for the benefit of New York City as a whole. The city need not pay the construction costs for a building that was never constructed. But if it takes the air rights, it should pay for them, at which point there will be responsible public deliberations of whether the light and view thereby preserved are worth the financial costs they impose on the city. The on-budget nature of the deliberation improves the operation of the democratic political processes.

Justice Brennan would have none of this. His first move was to insist wrongly that Justice Black’s maxim could not apply to complex forms of regulation that had to be governed by what he termed “ad hoc rules.” He further argued that those ad hoc rules did not require per se compensation for the taking of a partial interest in land. Instead, he urged a complex inquiry to determine whether the “investment-backed expectations” of the property owner merit compensation in light of the city’s public objectives in imposing these restrictive regulations on land use. From there he wrongly concluded that the “primary expectation” of Penn Central had to be the present use of its facility.

Therefore, so long as it received some return from the “parcel as a whole,” it could not complain of the loss of its future development rights, which were fully protected under New York law. He thus took the odd position that the government did not have to pay for the property interests that it took, so long as it left something of value behind, which is in flat contradiction to the standard rule that the government should pay for the property it takes, no matter how much it leaves behind.

As a legal matter, Penn Central opened up an intellectual can of worms that remains unresolved today. No one knows how Justice Brennan determined why the development of air rights didn’t matter to their owner, just because its current operations may have mattered more. Nor did his formulation give any guidance as to what the government should do with various land use provisions on parcels where current operations cannot cover their costs, or indeed, where the land was not developed at all, so that the only expectation had to be in development rights. Nor does anyone have any idea of what counts as the “parcel of land” when a single plot of land is subdivided into many lots, or multiple separate parcels of land are assembled into a whole.

The bottom line, however, is that the Court has, for the most part, let local governments impose extensive land use restrictions on all sorts of vacant and developed parcels, without the slightest assurance that the social gains from these regulations exceed the costs that they have imposed. The political pressures to get something for nothing are hard for local governments to resist.

The intellectual wreckage of Penn Central has made it impossible to introduce any sensible reforms on land use designation in New York City. The key to any sensible reform is to put all the government claims on budget, so that the public can deliberate sensibly about how much should be spent on landmark preservation and which projects should be selected for their the aesthetic and civic virtues.

The only way to achieve that focus is to require the state to pay for whatever it takes. Once that is done, grandiose claims will no longer be sustainable. In addition, fiscal restraint will compel public bodies to look for better ways to minimize the dislocations on current owners. With government resources limited, private groups can raise money to preserve key structures and monuments, spurred on by a charitable deduction that operates as a matching public grant.

Come to think about it, are we really sure that New York City is the better for not having a world class tower over Grand Central Station, when the view up and down Park Avenue was at the time already partially blocked by the (then) Pan Am building? It is surely worth asking whether the tough land-marking restrictions now in place are thwarting the creation of new landmarks, which current landmark regulations can easily do across entire districts. It is not for the courts to dictate the budgets or select the projects for landmark preservation. But by insisting on compensation for property taken by regulation, it can improve the deliberative processes and thereby ease the logjams, inequities, and factional struggles that luxuriate under the current statutory framework. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Watch the Symposium on Economic Liberties and State Constitutions

Weren't able to attend the the Symposium on Economic Liberties and State Constitutions? You can still catch the action! View the Keynote Address & Panels by clicking the links below.

Keynote Address featuring Hon. Robert Smith, formerly of the New York State Court of Appeals

Panel 1: “Historical Roots of the Protection, and Regulation, of Economic Liberties”

Panel 2: Modern Applications of State Constitutions to Economic Liberties: Realities and Pitfalls"

Can the President Kill Americans?

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

Can the president kill you? The short answer is: Yes, but not legally. Yet, President Obama has established a secret process that involves officials from the Departments of Justice and Defense, the CIA, and the White House senior staff whereby candidates are proposed for execution, and the collective wisdom of the officials then recommends execution to the president, who then accepts or rejects the recommendation.

If the recommendation is to kill and the president rejects the recommendation, the CIA is directed to arrest the person. If the president accepts the recommendation to kill, then death is ordered. This is not unlike the procedure used in the reign of the monstrous British King Henry VIII, except that the king himself delegated the final say to his chancellor so that he could publicly disavow participation in the government murders.

Obama does not disavow them; he defends them. But the Constitution he swore to uphold makes clear that whenever the government wants the life, liberty or property of anyone, it must follow due process. Stated differently, it must either sue the person for his property or prosecute him for his life or liberty, and the law that forms the basis for the lawsuit or the prosecution must have existed before the person did whatever the government says he did that resulted in its pursuit of him. The whole reason for the requirement of due process was to prevent what Henry VIII did and Obama is doing from ever happening here.

It is happening here.

In 2011, Obama ordered the CIA to murder Anwar al-Awlaki, an American born in New Mexico. When the CIA’s drones murdered Awlaki, he was within eyesight in Yemen of about 12 Yemeni intelligence agents and four CIA agents, all of whom collectively could have arrested him. He was not engaged in any unlawful behavior. He was unarmed and sitting at an outdoor cafe with a friend and his teenage son and the son’s friend. All four -- Americans all -- were murdered by the drones dispatched from Virginia.

When word of this got out, the president came under heavy criticism. He responded by claiming he had the lawful authority to kill any dangerous person whose arrest was impractical. He also claimed he had a legal opinion from Attorney General Eric Holder that justified the killings. He then dispatched Holder to explain the lawful basis for the killings at a speech at Northwestern Law School. The speech produced even more criticism and, eventually, the revelation of a portion of the legal opinion.

The legal opinion is hogwash. It relies on cases of hot pursuit in which police may lawfully use deadly force to stop an armed and dangerous person who is an imminent danger of causing deadly harm to someone else -- an armed robber fleeing a bank he has just robbed and shooting at his pursuers may of course be shot at lawfully by the police. In the Awlaki case, the government had not even alleged that he committed a crime. Without that allegation, those 16 intelligence agents who were following him for the final 48 hours of his life could not have lawfully arrested him. The government concedes this; so it decided to kill him.

All this resurfaced last week in a Brooklyn federal courtroom where another American, Mohanad Mahmoud al-Farekh, born in Texas, was charged with providing material assistance to a terrorist organization while he was in Pakistan. It was revealed that the Department of Defense nominated Farekh for execution, the CIA seconded the nomination (you cannot make this stuff up), and the president vetoed it because he did not want to offend the Pakistanis, over whose land he has dispatched more than 3,000 drones, a practice he promised to stop.

The president did not decline to order the murder of Farekh because it was morally wrong or unconstitutional or a violation of federal law, but because he feared it would upset officials in a foreign government. We also learned last week that the House and Senate committees on intelligence -- the members of which receive classified briefings that they cannot share with their constituents or colleagues -- demanded Farekh’s execution, but the president refused.

What a sad, sorry, unconstitutional state of affairs this Obama presidency and its enablers in Congress have brought us. Like Awlaki, Farekh was not engaged in an act of violence when intelligence agents pursued him. Why did one of these pursuits result in due process and the other in murder? Because of the political calculations of the president. That is not the rule of law. That is a gross violation of basic American values.

While all this has been going on, the president has negotiated a deal with Iran that has many in Congress up in arms. They think he gave away the store, and they are in the process of enacting legislation over his likely veto that would prohibit him from entering into agreements on nuclear weapons without their consent. Have you heard any of these self-proclaimed congressional patriots offer legislation to prohibit the president from murdering Americans? Who will be nominated for execution next?

When the president acts like a king and Congress looks the other way, it is as culpable as he is.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Problem With Antidiscrimination Laws

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

My column of last week, The War Against Religious Liberty, addressed the combustible mixture of the antidiscrimination norm and religious liberty, as it applies to ordinary businesses that do ordinary things, like taking photographs and baking wedding cakes. In dealing with that issue, I implicitly accepted the common premise that the antidiscrimination laws as they apply to public accommodations are an acceptable part of the American legal culture, so that the one remaining serious question is what governments should do when small businesses in competitive markets are asked to perform services that cut against their sincere religious beliefs. For the most part, these conflicts are rare, but they do occur with regularity when religious Christians object on grounds of conscience to providing services for same-sex marriages and similar commitment ceremonies.

The standard method for dealing with these conflicts is to introduce a three-step balancing test under both the federal and state versions of the Religious Freedom Restoration Act. The first step asks whether a presumptive exemption is appropriate because the law places a substantial burden on the exercise of a religious liberty. That question is answered in the affirmative when individuals are asked to engage in close collaborative efforts. But it is answered in the negative when the transaction involves only the sale of prepackaged and standardized goods in routine market transactions. Next, where the burden is substantial, does the state have a compelling interest in imposing its antidiscrimination law? All too often today that interest is found, which leads to a simple decree that the service must be provided on pain of a fine or other sanctions, even for services readily available elsewhere. Finally, that state interest is to be satisfied in the least restrictive possible manner, which in this context means offering the requested service or going out of business.

This conventional approach sets up a large and persistent clash between the antidiscrimination law and religious liberty. Much of that problem rightly disappears if we ask the right fundamental question: why and when do we have any antidiscrimination law at all? In examining this issue, it is critical to return to fundamental legal principles that antedate the passage of the Civil Rights Act of 1964, which extended the antidiscrimination principle first to “public accommodations” under Title II of the Act, and then to employment relations under Title VII.

Historically, the nondiscrimination rule was applied first to common carriers and then to public utilities because both were typically supplied by firms that had a monopoly position in the relevant market, which meant that a refusal of the operator of those facilities to supply the service to all comers left disappointed customers quite literally out in the cold. Nonetheless, the antidiscrimination principle was confined to those cases, so that in competitive markets any person could for any reason offer whatever goods and services he or she had on whatever terms and conditions that he or she saw fit to make.

The basic rule was stated with commendable clarity by Lord Ellenborough in England as early as 1810. In Allnutt v. Inglis, he wrote that in general every person “may fix what price he pleases on his own property,” but “if he will take the benefit of a monopoly, he must as an equivalent perform the duty attached to it on reasonable terms.” That principle worked its way into American public utility regulation as a constitutional matter in the 1876 decision of Munn v. Illinois. Over time its full elaboration denied that any common carrier or public utility had the power to turn away customers who had no reasonable alternative for obtaining service.

Yet, by the same token, that monopolist cannot be required to operate that service at a loss, and therefore is entitled to charge reasonable and nondiscriminatory rates. The first of these two terms signals that the monopolist’s profits should, on a risk-adjusted basis, be held down to competitive levels, without forcing it to operate at a loss. The second contains the core of the nondiscrimination principle, which states that the monopolist cannot play favorites among its customers in a given class (e.g. residential versus commercial services, or freight versus passenger service) by selectively boosting rates, most especially on grounds of race or sex. The only permissible rate differential reflects a differential cost of providing service.

In this context, the key predicate for the application of the nondiscrimination rule is the control over monopoly power. It follows therefore by this logic that in competitive markets there is no place for the antidiscrimination norm, so that the elaborate accommodations under a Religious Freedom Restoration Act need not be made at all.

The key inquiry therefore is how best to identify when those competitive conditions hold. In the run-up to the 1964 Civil Rights Act the great impetus behind the passage of Title II was the widespread and conspicuous stories of motels and restaurants refusing to provide service to their black customers on equal terms with white customers, assuming that they were willing to provide for them at all. At this point, there is an evident breakdown in the operation of competitive markets, because it seems evident that some merchants—most notably national restaurant and hotel chains—that provided open service in the North were unable to do so in the South. The explanation in large measure rested on the combined threats of a segregationist establishment backed by private violence, which made entry of new businesses into the market to serve disfavored groups a near impossibility. The great achievement of the Civil Rights Act of 1964 was to smash these official and private barriers to open services. Once released, competitive forces took over, and the short-term crisis came to an end.

It is important, however, to draw the right lesson from the horrific experience of segregation. That lesson is that if competitive market forces are allowed to work, the problem of discrimination will be solved by the entry of new firms who will cater to mass markets, wholly without legal compulsion. That was certainly the case in Indiana before the passage of its Religious Freedom Restoration Act. There were no legal rules that prohibited discrimination in public accommodations against gays and lesbians, and there was no want of service.

Marriage markets are of course different, because now the identity of the parties really matters along the lines of race and sex, which are the primary targets of antidiscrimination laws in public markets. It is well known that there is an active market that competes vigorously for same-sex-marriage couples in explicit and unmistakable terms. A quick Google search for “same sex wedding venues” revealed about 369,000 entries in that niche. For example, GayDestinationWeddings is “created expressly to serve the needs and exceed the expectations of the LGBTQ community.” From the website, it appears that it discriminates against traditional heterosexual couples. This reads like a flat-out violation of the new civil rights laws, but who cares? The fact that every entrepreneur does not choose to enter every niche in the larger wedding market is at most an irrelevant detail to the overall health of the market. The abundance of competitive alternatives means that federal and state governments never have a legitimate interest in forcing unwilling people into business with others. Thus, the need for the complex RFRA structure collapses.

But at this point, the response will be to play the race card. If you allow firms to refuse to service gay and lesbian individuals, then it becomes legal to refuse service to black persons as well. Precisely—at least if the legal principle is correctly stated. It would be a gross injustice of the first order to say that white people could refuse to service black people, but that black people were duty-bound to service white people. But the principle of freedom of association does not take that one-sided view of the problem. It says rather that all individuals can choose their trading partners as they see fit. This principle in effect allows for all sorts of associations to flourish.

Another quick Google search got me to Black Bride, “The Premier Online Resource for Brides of Color,” an attractive web site whose very existence looks like a per se violation of the Civil Rights Act. It is an open question of whether a strict color-blind principle could allow such important businesses to flourish. But as matters pan out, it takes but a single click to get the interested customer to a website that is devoted to multicultural interracial weddings, and then realize that a strict public accommodation law is a real threat to social diversity.

This particular rule is not confined to weddings. One of the great debates of the modern era is whether the color-blind principle of the Civil Rights Act renders affirmative action programs illegal for private businesses, colleges, and charitable institutions that wish to implement them. The worst approach to this question is to say that these institutions are allowed to follow their policies only if they can make out some special reason for doing so. That will only clutter the issue with claims about the vast benefits of diversity, which could be true in some cases, even if they are false in others. But why should institutions have to make these claims to do what they want? Just let any private institution that wants to deviate from a color- or sex-blind principle do so, which means that private colleges and universities should be free of the yoke of Title IX, whose antidiscrimination diktats have thrown a huge monkey-wrench into college athletics. University administrators will not be tone-deaf on these issues, even without the government peering over their shoulders.

The great mistake of the public accommodations provision of the 1964 Civil Rights Act is that it cut too broadly in covering all hotels, restaurants, and places of entertainment. Now that organized segregation and the systematic violence that enforced it have been vanquished, I am willing to bear indignant cries from anyone who objects to my effort to limit the nondiscrimination principle of Title II to common carriers and public utilities, where they blunt the risks of monopoly power in the provision of standardized services. To be sure, as a matter of political economy, it is unwise to mount a legal revolution to attack on principle a widely supported statute whose basic application causes no harm. But by the same token, the uncritical acceptance of the view that these public accommodation laws are so important that they should sweep everything else aside has produced serious dislocations where there is a horrible fit between the legal command and the social practice.

It is for that reason that it is important in the current environment to play the balancing game in the correct fashion, which means that we have to be very chary of expanding the notion of “compelling state interest” so that it becomes a weapon to create a two-tier society that privileges the claims of black voters, as in the recent Alabama Black Caucus case, and of gay and lesbian consumers, as in the battle over the Indiana RFRA law. The one safe principle is to allow competition to flourish in the market for goods and services, and to keep to the color-blind principle in the public dispensation of goods and services for all citizens, regardless of their legitimate claims of self-identification. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Thank You To All Who Attended Our Symposium on Economic Liberties & State Constitutions

JLL would like to thank our readers who attended our symposium on economic liberties and state constitutions. We had a great turnout, and we hope to see you at our future events!

We would also like to sincerely thank the Institute For Justice, as the symposium would not have been possible without their support. We hope to do more events with IJ in the future, and encourage our readers to check out the excellent work they have been doing across the country!

Justin Pearson (left), Professor Stephen Calabresi (middle), and Professor Richard Epstein (right). 

Justin Pearson (left), Professor Stephen Calabresi (middle), and Professor Richard Epstein (right).