Obama’s property grab

The Barack Obama administration tried last week to convince the U.S. Supreme Court that the federal government can deny landowners the use of their property for years – decades if need be – without ever paying compensation.

Deputy Solicitor General Edwin Kneedler advanced this remarkable proposition during oral argument in Arkansas Game and Fish Commission v. United States, a case involving the damage wrought by the Army Corps of Engineers in its operation of the Clearwater Dam in Arkansas.

From 1993 to 2000, the Corps’s management of the dam caused regular flooding of a 23,000-acre wildlife management area, killing trees and depriving the commission of revenue from timber sales.

Fortunately, the Constitution provides a remedy for such abuses: the Fifth Amendment’s takings clause, which requires the government to pay “just compensation” when it takes property for public use.

The Supreme Court long ago established that citizens can suffer a “taking” within the meaning of the Fifth Amendment even if the government does not literally seize their property. In the 1871 case of Pumpelly v. Green Bay Co., the court held that government-caused flooding can constitute a taking – rejecting the outlandish argument that a property owner should have no remedy as long as he still holds title to his (now submerged) land.

“It would be a very curious and unsatisfactory result,” the court said in Pumpelly, if the state could evade the just compensation requirement of the Fifth Amendment simply because it had not taken property “in the narrowest sense of the word.”

Before the oral argument, the only serious legal question was whether eight years of intermittent flooding met the definition of a taking. Some Supreme Court precedents have suggested that such “regulatory takings” – that is, where the government does not literally seize property – must be permanent in order to trigger the Fifth Amendment’s compensation requirement.

Even on that narrow question, the federal government had a weak argument. There was nothing temporary about the damage caused by the Corps: The deceased trees are permanently dead; the lost timber revenue is gone forever.

The federal government, however, came to the Supreme Court with a much more sweeping argument. Even if the Corps had permanently flooded the plaintiff’s property, Kneedler said, there would be no Fifth Amendment taking because people who live on a flood plain are aware of the risks of inundation.

“When you live on a river and you know the consequences of having a flood control project on the river, that’s what happens.”

Whether the damage is caused by God or the federal government would seem to make no legal difference to the Justice Department. By that logic, the government would bear no liability for causing property damage along the West Coast because, after all, people who live in an earthquake zone are bound to get whacked sooner or later. The same could be said of Tornado Alley. Or the Gulf Coast.

The principle behind the administration’s argument is that the government must be empowered to “adjust the benefits and burdens” of living alongside a river – without the expense of having to compensate the poor souls who end up with more burden than benefit. But that assertion turns the Fifth Amendment on its head.

The very purpose of the takings clause is “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,” as the Supreme Court stated in Armstrong v. United States (1960).

By requiring the government to pay compensation, the Fifth Amendment spreads the burden of takings among all taxpayers.

Arkansas Game and Fish Commission is the first takings case to arrive at the Chief Justice John Roberts court. The justices should take the opportunity to reject the government’s position and uphold the historical scope of Fifth Amendment property rights.

Even some liberal justices were taken aback by the government’s demand for unfettered discretion over the “benefits and burdens” of private property.

“I must be slow today,” Justice Sonia Sotomayor said, referring to Kneedler’s description of when a legal taking occurs. “I am having significant problems with your articulation of your test.”

Alas, the problem was not Sotomayor’s.