According to the Fourth Circuit Court of Appeals, the answer is no. Last year, that court dismissed Virginia's lawsuit challenging Obamacare, on the grounds that the state had no interest in the lawsuit above and beyond the interests of its citizens, and states aren't allowed to sue just on behalf of their citizens. States can only sue if they have some unique interest as states.
In the latest issue of the University ofFlorida Journal of Law & Public Policy, I argue otherwise. I contend that states should have the right to sue the federal government for exceeding its constitutional boundaries if in doing so, it conflicts with a state law, such as the Health Care Freedom Act. After all, states already have the right to challenge federal laws that contradict state laws on a variety of other subjects. If the federal government says that states can't regulate hunting or fishing within their boundaries, for example, the states can sue because the federal government is interfering with the state's constitutionally reserved sovereignty. The Fourth Circuit acknowledged that, but said that that rule didn't apply because the Health Care Freedom Act didn't regulate individual action or run a state program. But as I contend in my article, states aren't just limited to regulating individual action or running state programs. They also have the authority (reserved by the Tenth Amendment) to articulate and enforce individual rights, which is what the Health Care Freedom Act did. And that means that they should have the power to intervene to defend their own interest as states to protect their citizens.
After all, that's basically what happened in McCulloch v. Maryland, one of the central decisions in American constitutional law...which the Fourth Circuit completely ignored.
Article I, Section 7 of the Constitution says that tax bills – “all bills for raising revenue” – must “originate in the House of Representatives.” The framers wrote this “Origination Clause” because they recognized the potential danger in the taxing power, and they wanted to keep it as close as possible to voters. So they entrusted it to members of the House, who are elected every two years and have smaller constituencies than senators, who represent whole states and serve staggered six-year terms.
But Obamacare didn’t follow the constitutional script. Instead of originating in the lower chamber, it started in the Senate, when Majority Leader Harry Reid took an old bill the House had passed that would have given veterans tax credits to buy homes, struck out all of that bill’s language, and inserted instead the confusing web of provisions that became the Affordable Care Act.
When the government and a property owner come into conflict, the power is overwhelmingly on the side of the government. It has basically limitless resources and time, and if the government chooses, it can find ways to prevail against even very wealthy and powerful citizens. In fact, the U.S. Supreme Court has in some ways encouraged government to twist people’s arms when it wants their land.
The judicial system, of course, is supposed to be a place where property owners and government can meet on a level playing field, for a judge to decide fairly between them. But a bill now being considered by the California legislature would tilt that field strongly in favor of the government. AB 436—which will be considered by the Assembly Judiciary Committee this week—sharply limits a property owner’s options when he or she seeks the just compensation that the Constitution promises whenever the government takes actions that essentially confiscate land. This law does not apply to eminent domain cases, when the government literally takes the title to property; it applies only to what lawyers call “inverse condemnation”—cases in which the government has either damaged property or so drastically restricted the right to use property as to render it worthless to the owner. In such cases, the property owner can sue for just compensation, but under AB 436, the owner would risk a lot when doing so.
AB 436 would provide that when an “inverse condemnation” case begins, the government can make the property owner an offer to settle the case, and if the owner rejects that offer, and later loses in court, the owner can be required to pay for the government’s legal costs (beginning at the date when the offer was rejected). These costs can be very extensive, including paying for the government’s legal defenses and expert witnesses. But the bill doesn’t condition this requirement on the reasonableness of the government’s original offer. That means that government can—and likely will—make a lowball “offer,” gambling that it will win later and then force the property owner to pay the bill for the taking of his property. Given the fact that California law is already strongly biased against property owners—so much so that former Supreme Court Justice Janice Brown once wrote called private property “an endangered species in California”—this is a very significant risk. There’s no downside to a city offering a property owner five bucks for land worth a million, expecting that it can later win—or at least avoid losing through some procedural technicality—and then force the landowner to pay for its expert witnesses and lawyers.
Even stranger, AB 436 would apply the concept of “comparative fault” in cases of inverse condemnation. “Comparative fault” is a theory from tort law; it holds that if one person sues another for some injury or accident, and he was at least partially at fault for it himself, the court can take that into consideration when awarding damages. In other words, if you get in a car accident and you were 10 percent at fault, and the other guy was 90 percent at fault, the court can award you 90 percent and the other guy 10 percent of the damages.
This notion has no place in the law of property rights. The constitutional guarantee of “just compensation” isn’t punishment for some wrongful behavior on the part of the government. It’s just a guarantee that if the government takes your property for some public purpose, it will pay for it. Tort law is supposed to deter and punish wrongful conduct. But government takings aren’t “wrongful” conduct (at least, when they’re done within constitutional boundaries)—it’s just a forced transaction, in which the government compels you to sell your land. Nobody likes that, but it’s not the same thing as a car accident or someone purposely punching you.
Why, then, apply this alien concept of “fault” in inverse condemnation cases? Note that it can only be used to reduce the amount of compensation that a property owner will get. If the court finds that part of the reduction in property value was caused in some way by the property owner, then the court can reduce the amount of compensation. But AB 436 does not provide that the government will pay more if it does something wrong. Only the property owner runs the risk of losing his constitutional right to compensation.
If adding this “comparative fault” concept makes sense in inverse condemnation cases, why not apply it also to eminent domain? If the owner’s “fault” counts in one case, there’s no reason it shouldn’t count in the other. The only reason that AB 436 draws this line is that while eminent domain is a controversial political issue, people have tended to pay less attention to inverse condemnation cases—which are actually far more common, and often more devastating, to property owners in California. By confining this unfair new rule only to the latter cases, AB 436 would sneak under the radar.
Of course, courts already have the power to reduce compensation awards if the property was, for some reason, worth less than the owner claims. If he says the land had a mansion on it, but it actually only had a tarpaper shack, the judge can already award a small amount instead of a large one. But by adding “fault” into the law, AB 436 would encourage judges to declare that the property owner was in some sense responsible for his or her own loss—and reduce the compensation accordingly. This is a problem because the government sometimes takes extreme or unnecessary steps to address nuisances or other kinds of losses. Under current law, property owners have constitutional protections against such things…ideally. Current law also protects the government against unjust awards. As the Court of Appeal said in Bunch v. Coachella (1997), “If the public entity’s conduct is unreasonable and a substantial cause of damage, the entity is liable only for the proportionate amount of damage caused by its actions. This inverse condemnation rule invokes constitutional balancing principles and is not governed by tort concepts of fault or negligence. It requires a balancing of the public need for flood control against the gravity of harm caused by unnecessary damage to private property.” But if AB 436 is passed, the property owner could get less than the property is worth because the court finds that he or she was somehow at “fault” for the government taking away the land.
No other state has transferred the notion of “comparative fault” from tort law into property rights in this way. California should not be the first. AB 436 is at best confusing, and at worst a clever device to further erode the constitutional protections for property owners in this state. That bill should be rejected.
Kampa is a brillliant poet I only recently discovered. I do not share his religious views, but he expresses them with such beauty, grace, and wit, that he's quickly become a favorite to me. I strongly recommend his book, Cracks in The Invisible, especially to my Christian friends.