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A San Jose ordinance requires developers to set aside 15 percent of their units for sale at an “affordable housing cost.” Those affordability restrictions remain in effect for 45-55 years. If developers don’t want to set aside affordable housing units, they have the option to build affordable units elsewhere, pay a fine, dedicate land for affordable units, or acquire or rehabilitate existing affordable units.

However laudable it is to construct affordable housing, the city is essentially appropriating part of the developers’ property for its own uses or conditioning the issuance of permits on paying out large amounts of money. The California Building Industry Association (CBIA) filed suit, arguing that the city’s restrictions violate the Fifth Amendment’s Takings Clause, which prohibits the government from taking private property for public use without just compensation.

Previous Supreme Court decisions, including Koontz v. St. Johns River Water Management District from 2013 (which Cato supported), held that such conditions on building permits can violate the Takings Clause if the exaction—whether a fine or a requirement to set aside affordable housing—is unrelated to the proposed building project. It would thus be unconstitutional to condition a permit for a housing development on the construction of a new library, because the library has nothing to do with the proposed building project.

In the CBIA case, however, the California Supreme Court ruled that, because the conditions in San Jose derive from a legislative act rather than an ad hoc permitting condition, the U.S. Supreme Court’s clear precedents don’t fully apply. The CBIA has asked the U.S. Supreme Court to set the California Supreme Court straight by making clear that the Takings Clause prohibits such permitting conditions whether they come from a legislature or a discretionary permitting process.

Cato, joined by the Reason Foundation, has filed a brief in support of the CBIA’s petition. We argue that there’s no basis in the Takings Clause for distinguishing between legislative conditions and ad hoc permitting conditions. To the landowner or the developer, the effect is the same: the government imposes onerous conditions before allowing them to use their land. Moreover, legislatively imposed conditions are worse because they have broader effects, thus magnifying the unconstitutional harms to property owners.

Finally, there’s no reason to expect less abuse from the legislature than from permitting officials. Legislatures are prone to being captured by special interests who demand all sort of exactions from and conditions on landowners. Government officials, whether they are legislators or permitting clerks, often see taking property without compensation as a way to get something for nothing.

The Supreme Court should take this case and say that this ain’t okay, San Jose.  

David Nakamura of the Washington Post recently described the Trans Pacific Partnership (TPP) as an “expansive free trade and regulatory deal.” That’s a good way of putting it. There will be plenty to say on the regulatory side, particularly after the text of the agreement is released, and the two aspects will have to be weighed and balanced somehow, but for now let me emphasize some of the free trade side. USDA just released some explanations of the liberalization, related to 20 or so agricultural products, that the TPP partners will promise to grant to each other.  Here are some randomly selected highlights:

  • “Under the TPP agreement, Vietnam will eliminate tariffs on all potatoes and potato products, currently as high as 34 percent, within six years. It will eliminate the 13-percent tariff on frozen French fries in four years.”
  • “The United States’ tariffs on peanuts and peanut products, currently as high as 163.8 percent, will be eliminated within 10 years.”
  • “Malaysia’s duties for wine, ranging from 7-108.50 Ringgits (approximately $2.08-$25.58) per liter will be eliminated in 16 years. For beer, Malaysia’s duties at 5 Ringgits (approximately $1.18) per liter will be eliminated in 16 years.”
  • “Japan’s tariffs on carrot juice, tomato paste, and tomato juice, currently ranging from 7.2-29.8 percent, will be eliminated in six years.”

Again, I don’t know yet how to weigh and balance everything in the TPP. But looked at on its own, the trade liberalization aspect of it could be pretty good (although a little slow to take effect in some cases).

Does the government need to offer you a good reason when it restricts your liberty? Most Americans would likely answer “yes.”  But what’s a “good reason?” Must the government’s allegedly “good” reasons be supported with evidence or should courts just give the government the benefit of the doubt?

Both progressives and conservatives often do ask judges to put a thumb on the judicial scales in the government’s favor. Progressives see government as generally a force for good (except when certain preferred rights are threatened, as defined by progressive elites), while conservatives want judges to defer to the elected branches (except when Obamacare or other disfavored federal programs are at issue). Thus we have the twin scourges of judicial adventurism and minimalism – rewriting or ignoring inconvenient constitutional or statutory provisions – instead of unblinkered judicial enforcement of the law. 

In other words, both progressives and conservatives miss the boat when they focus on judicial modes (whether a ruling is “activist,” an empty term meaning that its user disagrees) rather than interpretative theories (originalism vs. living constitutionalism, textualism vs. purposivism). Indeed, even people who care about judicial modes should want judges who apply their preferred interpretive theory without regard to extra-legal considerations and without adopting biases towards the government or any other type of party. The nomenclature is less important than the substance, but “judicial engagement” is increasingly becoming the name for the alternative to the wholly unsatisfactory debate about judicial “activism” and “restraint.”

Judicial engagement is a term coined by the Institute for Justice (IJ) to describe the judicial mode that focuses on interpretive theories rather than whether a judge is “active” or “passive.” It’s an approach to judicial review that provides a means of ensuring that Americans receive an honest, reasoned explanation in court whenever they allege a plausible abuse of government power.

Judicial engagement involves a genuine, impartial search for the truth concerning the government’s means and ends, grounded in reliable evidence. An engaged judge will place the burden on the government to demonstrate that its actions are justified by a constitutionally proper end. IJ’s Center for Judicial Engagement – led by my friend Clark Neily, whose deputy is former Cato legal intern Evan Bernick – has published its first annual review of the judiciary’s performance, “Enforcing the Constitution”, explaining the concept of judicial engagement as well as its opposite, judicial abdication, and summarizing cases decided over the past year that vividly demonstrate the difference between meaningful and meaningless judicial review.

Judicial engagement sounds like something that judges should be doing already, but it’s the exception rather than the rule. At present, judicial engagement is reserved for a handful of constitutional cases implicating so-called “fundamental rights” that the Supreme Court has identified on an ad hoc basis over the years, or those involving suspect classifications. The Court has held, and lower courts have understood, the default standard – the so-called “rational basis test” – to require reflexive judicial deference to the government’s factual assertions and even oblige judges to invent justifications for the government’s actions if the government’s lawyers can’t do so on their own.

In other contexts as well, courts have bent over backwards to say “yes’ to government, refusing to invalidate government actions unless they are clearly, unambiguously prohibited by the constitutional text, without any reference to the Constitution’s core function: securing individual rights. Simply put, this is not adjudication – it’s an abdication of judicial responsibility – and it’s incapable of preventing illegitimate assumptions of power by the political branches.

Enforcing the Constitution” illustrates the concepts of engagement and abdication through 20 important cases decided in 2014 and 2015, 10 of which showcase the kind of judicial review that’s required if the courts are to serve as “bulwarks of liberty,” 10 of which saw judges abdicating their responsibility to keep the political branches in check. They come from state and federal courts, including the Supreme Court. They involve SWAT raids on barbershops, licensing schemes for tour guides, gun rights, gay marriage, raisin pilfering, and Obamacare SCOTUScare RobertsCare the Affordable Care Act. Each case tells a story; some offer inspiration, others serve as cautionary tales. To prepare readers for the journey, the report provides a taxonomy of engagement and abdication – I highly recommend this part, which is a timeless rubric by which to evaluate all judicial rulings – so readers can determine for themselves when judges are performing their duty, or neglecting it.  

The Constitution was written to empower government to secure our liberty, but then limit it to protect us against the government’s own excesses – recall the “if men were angels” bit in Federalist 51, which made it into my wedding – but those limits are meaningless unless judges enforce the Constitution and stop public officials when they overstep their bounds. Decades of judicial abdication have given us far more government than the Constitution permits, and far less freedom than it guarantees. Judicial engagement offers defenders of liberty an approach to judging that is capable of delivering on the Constitution’s unparalleled promise.

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