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Fifth Amendment and Clinton? |
he Takings Clause The takings clause of the Fifth Amendment provides: "nor shall private property be taken for public use, without just compensation." While government officials have relentlessly sought to narrow the judicial application of that clause to circumstances in which the state has actually taken title and deed away from the property owner, the Supreme Court has recognized that governmental regulations that leave the title with the owner might also amount to a compensable "taking." Thus, the Court has held that regulations that take all the value from the property by effectively prohibiting its use amount to a taking of the property. [73] As the number and scope of federal and state regulations have multiplied over the years, so have the grievances of landowners who point out that their property has been commandeered for various public policy objectives--from the preservation of wetlands and wildlife habitats to the provision of various community amenities. [74] But since few property owners have the financial wherewithal to wage a long legal battle against the federal or state governments, many governmental takings go uncompensated because lawsuits are never filed in the first place. The 104th Congress attempted to redress the imbalance between landowners and regulators by introducing various property rights measures aimed at giving property owners a statutory remedy against overweening federal agencies. [75] Unfortunately, the move to enact property rights legislation stalled when President Clinton announced that he was unalterably opposed to such measures and would veto any such bill that emerged from Congress. The president characterized the property rights legislation as a "budget buster" that would "benefit wealthy landowners at the expense of ordinary Americans." [76] It is revealing to consider the president's characterization of takings legislation as a "budget buster" in context. The Clinton White House, after all, has been urging Congress to spend a trillion dollars--over and above current spending levels--during the next several years. Against that background, it is difficult to take the president's expression of concern over spending levels seriously. But even if the president were a true advocate of spending restraint, his budgetary objection would be irrelevant as a constitutional matter. Since the takings bills were an attempt to vindicate constitutional rights guaranteed under the Fifth Amendment, the president had a duty to find room in the federal budget for victims of regulatory overreach. To paraphrase Justice Antonin Scalia, the president and Congress are not at liberty to conduct a cost-benefit analysis of a constitutional guarantee and then adjust the meaning of that guarantee to comport with their findings. [77] Everyone recognizes, for example, that jury trials are more expensive and time-consuming than bench trials, but no one who takes the Constitution seriously would propose the legislative abolition of the jury trial procedure in order to "balance the budget." President Clinton's inability to distinguish the property rights bills in Congress from the vast array of special-interest spending programs (foreign aid, corporate welfare, art subsidies, etc.)--which are not necessitated by the Constitution--should be disturbing to all Americans. Not only is the president's claim that the takings bills "benefit wealthy Americans" false, but it is important to recall that the Bill of Rights was designed to protect the rights of every individual against the government. No American should be forced to expend exorbitant amounts of money in litigation in order to vindicate his constitutional rights (those rights, after all, were the individual's to begin with). The fact that some individuals and organizations can comfortably absorb those expenses is beside the point. That said, it is not difficult to see that middle-class and poor owners of property would have been the primary beneficiaries of the takings legislation, since they are the least able to afford the attorneys' fees that are necessary to fight a regulatory agency in court. Finally, as will be argued below, President Clinton's record on behalf of "ordinary Americans" is open to question--at least in the takings context. When a small businesswoman named Florence Dolan took a takings claim to the Supreme Court in March 1994, the Clinton Justice Department filed a legal brief against her. Dolan wanted to expand her plumbing and electrical supply store in Tigard, Oregon, but the local zoning board refused to issue a permit for the expansion unless she dedicated a 15-foot strip of land to the city to be used for a bicycle pathway. The city also said that Dolan would have to pay for the construction of that pathway. After several failed attempts to secure a variance from the proposed condition, Dolan sued the city for forcing her to choose between two of her rights: her right to build without giving up her land and her right to compensation if she did give up her land. [78] Dolan's attorney, David Smith, introduced evidence that showed that city planners had contemplated the construction of a citywide floodplain greenway and bicycle-pedestrian pathway. Smith plausibly argued that the city had planned to use its permit and zoning powers to force certain landowners to pay for the public improvements in a piecemeal fashion instead of using funds from the general treasury. Smith's argument raised a classic takings claim. The Supreme Court has noted that one of the primary purposes 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." [79] Solicitor General Days's legal brief to the Supreme Court made two primary arguments: first, that the burden of proof in the takings area ought to be shouldered by property owners, not governmental regulators--and Days maintained that Dolan had not met the requisite burden in the instant case--and second, that cities ought to be given "considerable latitude" when they impose permit conditions. Days urged the Court not to subject governmental conduct in the takings area to the high level of scrutiny that the Court uses in reviewing other claims of constitutional violation. [80] The Supreme Court rejected both of Days's pleas and then went on to remind the Clinton Justice Department that "the Takings Clause of the Fifth Amendment [is] as much a part of the Bill of Rights as the First Amendment or the Fourth Amendment" [81] and to place the legal burden on the government to justify any conditions it wishes to attach to zoning permits. The Supreme Court sent the case back to the Oregon district court to give the city of Tigard another opportunity to justify the conditions it attached to Dolan's permit. Just wondering, what is the question? As interesting as your 'cut and paste' article is, you are meant to ask a question on this site. Source(s): http://uk.answers.yahoo.com/info/communi... Why the same question twice??????????? |
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