Jay Bybee models conservative judicial activism in the 9th Circuit.

The law, lawyers, and the court.
May 28 2010 4:44 PM

Torturing the Law

Jay Bybee models conservative judicial activism in the 9th Circuit.

(Continued from Page 1)

That the Supreme Court has never before found a regulation unconstitutional on its face under the Takings Clause is hardly surprising. As explained in a brief Constitutional Accountability Center filed with the 9th Circuit, courts must exercise particular restraint in declaring an act of government to be a regulatory taking, given that the text and history of the Fifth Amendment itself show that the Founders intended to limit only physical takings of property for public use without just compensation. And even Justice Antonin Scalia, a solid supporter of the property rights movement, acknowledged in Lucas v. South Carolina Coastal Council that "early constitutional theorists did not believe the Takings Clause embraced regulations of property at all."

While the Supreme Court eventually decided to extend the Takings Clause to regulations that "go too far," it has made clear, particularly in Lingle and other recent cases, that regulations can be takings only when they are truly extreme to the point that the taking becomes a functional equivalent of a physical occupation or "taking" of land. After all, nearly every land use regulation limits property rights in some way. But very few of them rise to the level of being unconstitutional takings. So Judge Bybee's decision tossed aside the careful limitations in Supreme Court precedent and broke new jurisprudential ground, that a regulatory—as opposed to a physical—taking was unconstitutional. And he did it for the very first time in a case in which it could not be more unjustified, and by pinning his constitutional reasoning on a mythical gap in time into which, evidently, the law itself evidently disappeared altogether.

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The pro-property activism of Bybee's opinion in Guggenheim is amply demonstrated by the dissent from his conservative colleague Judge Andrew J. Kleinfeld, who is himself certainly no fan of rent control. But Kleinfeld explained in dissent that, no matter how much he or anyone else might want to declare this rent control ordinance a taking, no faithful application of the Constitution and court precedent allows it. As Judge Kleinfeld explained, the Guggenheims purchased their mobile home park with the rent control plan in place—and, accordingly, the price they paid for it reflected a discount based on the reduced rental profits. The "gap in time"—which was literally mere moments on the day the city incorporated—did not change any of that. The Guggenheims got exactly what they paid for: a mobile home park subject to rent control. The city took nothing from them. There simply was no taking. Not under the law, not under the facts, and not under any common-sense understanding of how the law works in real life.

Talk of judicial activism tends to focus on results, but the Guggenheim case shows that maybe we should talk a little bit more about method. Whatever one thinks about rent control, we should all be able to agree that bending the law to reach a judge's desired outcome is the very definition of judicial activism.

Fortunately, the full 9th Circuit has now agreed to reconsider Judge Bybee's decision. Let's hope the rest of the judges on the 9th Circuit are a little less creative in their reading of both the Constitution and Supreme Court precedent. Let's also hope that critics of the 9th Circuit's purported "activist" tendencies are as willing to decry blatant judicial activism when it comes from a pro-property conservative, as they are when they think it is coming from lefty liberals.

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Doug Kendall is president and Elizabeth Wydra is chief counsel of Constitutional Accountability Center, a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution's text and history. CAC filed a brief in Guggenheim in support of the City, a copy of which may be found here. CAC was joined on the brief by the American Planning Association, APA California, and the Western Center on Law and Poverty.

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