The editors of the Yale Law Journal Pocket Part asked me to write a short reply to Hannah Jacobs Wiseman’s article arguing that laws requiring the government to compensate property owners for regulatory takings will hurt the poor. In my contribution to the debate, I argue that regulatory takings reform is unlikely to hurt poor communities, and might actually benefit them by impeding the enactment of regulations that harm the poor for the benefit of more affluent interest groups. Here’s a brief excerpt:
Does requiring government to pay compensation for regulatory takings harm poor communities? My answer to this underanalyzed question is “probably not.” Because of the relative political weakness of the poor, unfettered government regulatory authority is likely to be used to their detriment more often than to benefit them. History shows that unconstrained government power to abrogate property rights has caused great harm to the poor.
The issue of regulatory takings reform is distinct from, but related to, post-Kelo eminent domain reform. The former seeks to force government to compensate property owners in certain cases where their property rights have been restricted by regulation – treating such regulations as takings, but allowing them to go forward so long as compensation is paid. The latter seeks to prevent certain types of takings entirely. In this Northwestern University Law Review article, I criticized claims that post-Kelo reform is bad for the poor.