Rick Hills on Koontz, Property Rights, and Federalism

NYU law professor Rick Hills isn’t nearly as pleased with the Supreme Court’s important property rights decision in Koontz as I am. He objects to the result primarily on federalism grounds. In Rick’s view, federal courts should not enforce significant Takings Clause constraints on state land use policies because they can’t effectively with the diversity and complexity of local land use decisions:

The idea that the Court will enlist federal courts to duplicate the work of state courts in policing conditions on literally hundreds of thousands of land-use permits, as suggested by Justice Alito, seems laughable, because the feds lack the manpower and electoral legitimacy to pull off such an act of imperialism….

[W]hy do I say that serious enforcement of Nollan-Dolan against a broad range of conditions on land-use development would lead to a quagmire? The Court declared that a demand on a developer to improve some off-site culverts is covered by the Nollan/Dolan line of cases, thereby embarking on what looks to be a futile effort to police the literally hundreds of thousands of conditional permissions for land development from roughly 35,000 general purpose local governments. Justice Alito tried to cheer us up by asserting that “teasing out the difference between taxes and takings is more difficult in theory than in practice” (Slip Op. at 19). But the very form of this encouragement suggests that SCOTUS either does not know what it is getting into or is being disingenuous about the burden that it is assuming: The problem is not merely distinguishing taxes from takings but also distinguishing all other routine conditions on land-use permits (e.g., obligations to build affordable housing, finance public plazas, bank wetlands, hire local folks for construction jobs, improve subway stops, etc.) that are the routine currency of conditional map amendments, conditional use permits, variances, PUD approvals, and the like….

State courts can adopt different decentralized solutions reflecting regional differences in political culture: The feds cannot.

This kind of argument against federal court enforcement of constitutional rights isn’t limited to Koontz, the Takings Clause, or even property rights generally. It applies to federal judicial enforcement of any constitutional right that requires policing a large number of complex policy decisions by a wide range of state and local officials. Consider state and local policies on freedom of religion, racial discrimination, and searches and seizures. Lots of different state and local governments have policies that regulate various religious groups or engage in racial discrimination. And, obviously, religious and racial issues differ enormously from state to state. Consider the vast differences between, say, Idaho, Mississippi, and New York. Things are even worse when it comes to the Fourth Amendment. Searches and seizures are conducted by thousands of law enforcement officials answering to hundreds of agencies. And the conditions that determine whether a search is “reasonable” or not vary from house to house, to say nothing of city to city or state to state. Yet few claim that such complexity and diversity disqualify federal judges from enforcing the First and Fourth Amendments. Despite the difficulties involved, federal courts have played a valuable role in enforcing these rights against recalcitrant states and localities. The same is true of Koontz and the Takings Clause. It won’t always be easy to tell which land-use permit conditions lack an “essential nexus” and “rough proportionality” to preventing some some harm the landowner might cause. But such determinations are no more inherently difficult than determining which police searches are “reasonable” or determining which types of racial discrimination are “narrowly tailored” to the advancement of a “compelling state interest.”

It is true, of course, that state courts have a valuable role in enforcing a wide range of constitutional rights, including property rights. Yet we have federal courts precisely because state courts often fail in this task, sometimes because of bias in favor of the very state and local governments that constitutional rights are intended to restrain.

Rick correctly points out that lower court judges sometimes balk at enforcing Supreme Court property rights decisions aggressively. But I doubt that this is primarily because of the difficulties caused by local complexity. Rather lower court judges often fail to prioritize property rights in large part because the Supreme Court itself often fails to do so, treating them as the “poor relations” of constitutional law. If the Supreme Court begins to take property rights as seriously as it does other constitutional rights, there is no reason to believe that lower courts will have any more trouble enforcing them than they do enforcing most other rights. As in these other fields, enforcement will be far from perfect, but still robust enough to impose significant constraints on local abuses.

Finally, Rick suggests that Koontz has a saving grace, which might ensure that it has little effect, therefore preventing it from genuinely interfering with local land use policy:

[H]ow will the federal courts eventually exit this quagmire? The answer might be remedial equivocation. Nollan-Dolan has so far mostly been a dead letter in zoning litigation, because the remedy in lower courts has usually (although not universally) been restoration of the pre-exaction status quo in which the developer is unconditionally denied the desired permission to build…

If state courts can continue to define the Nollan-Dolan remedy as invalidation of the illegal condition and denial of the zoning permission, then Koontz will be a practical dead letter. And a good thing, too, if one cares about federalism and believes, as I do, that Nollan-Dolan was always a quixotic expedition to control land-use decisions far too numerous and fact-specific to be amenable to federal judicial policing.

I think this is unduly pessimistic (from my point of view) or unduly optimistic (from Rick’s). Koontz does not address the issue of remedies, so it is far from clear that restoration of the status quo is the remedy lower courts and the Supremes will ultimately settle on. Even if it is, that remedy is far from completely toothless. It disincentivizes states and localities from adopting land-use restrictions whose main purpose is precisely to be used as leverage in forcing landowners to accept extortionate conditions in exchange for lifting them. Strong judicial enforcement of Nollan, Dolan, and Koontz can curb such protection rackets, even if the only available remedy is invalidation of the condition in question. In addition, it can help send a signal that the Supreme Court is finally getting serious about property rights.

This is not the first time that Rick and I have debated federalism and property rights. Our previous exchange on the subject led me to write an entire article about the subject. Although Rick and I often disagree about these matters, I always learn a lot from his insightful commentary.

UPDATE: I should perhaps mention the part of Rick’s post that explicitly criticizes my own earlier post:

Ilya Somin over at Volokh’s claims that Justice Alito “deals effectively with this argument [that the federal courts are over-extending themselves] by “noting … that the rule adopted by the majority is already the law in many states, yet the sky has not fallen there.” But Ilya and Justice Alito both beg the central question of federalizing land-use law by using state courts as a model for federal judicial behavior. The problem with the feds is that they lack the decentralized flexibility and democratic legitimacy to mimic state courts’ behavior.

In that passage, I was answering a different argument from the one Rick makes: the claim that the rule adopted by the Court would lead to chaos and endless litigation. Since state enforcement of the same rule has not done so, it is unlikely that federal enforcement will. Nor is there reason to believe that federal courts will be worse than state courts because they lack “decentralized flexibility and democratic legitimacy.” That has not been the case with federal court enforcement of other constitutional rights that involve complex local policy decisions. Moreover, as I discuss in my article on “Federalism and Property Rights,” there is little reason to believe that the average state judge is significantly more knowledgeable about local land-use policy and property law than the average federal district court judge. Federal district judges usually come from the states where they hear cases, and many have prior experience as state judges, state officials, or practitioners. Few federal judges are property law experts. But the same is true of state judges. As for “democratic legitimacy,” the federal judiciary is at least as popular and respected as state judges are; in many states more so.

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