Supreme Court Refuses to Consider Eviction Moratorium Takings Case
It wasn’t a great Supreme Court term for property rights advocates. In March, the Supreme Court refused to hear Bowers v. Oneida County Industrial Development Agency, which I and many others thought would have been a great opportunity to overturn or at least limit Kelo v. City of New London. On June 30, the Court similarly denied cert in GHP Management Corp. v. Los Angeles, a Ninth Circuit case that would have been a great opportunity to address the issue of whether eviction moratoria qualify as takings – and rule that they do!
But Justice Clarence Thomas wrote a strong dissent to the denial, joined by Justice Gorsuch. Here is an excerpt:
I would grant review of the question whether a policy barring landlords from evicting tenants for the nonpayment of rent effects a physical taking under the Takings Clause.
This question is the subject of an acknowledged Circuit split. The Eighth and Federal Circuits have held that a bar on evictions for the nonpayment of rent qualifies as a physical taking, while the Ninth Circuit has held that it does not….
This Circuit split stems from confusion about how to reconcile two of our precedents. The Ninth Circuit treated as controlling this Court’s decision in Yee v. Escondido, 503 U. S. 519 (1992), which held that a statute did not effect a physical taking when it allowed mobile home owners to evict tenants only after an onerous delay….
By contrast, the Eighth and Federal Circuits looked to our more recent decision in Cedar Point Nursery v. Hassid, 594 U. S. 139 (2021). There, we held that a law requiring
agricultural employers to allow labor organizers onto their property constituted a physical taking because it “appropriate[d] for the enjoyment of third parties the owners’ right to exclude.” Id., at 149. And, the Eighth and Federal Circuits reasoned, if “forcing property owners to occasionally let union organizers on their property infringes their right to exclude,” it follows that “forcing them to house non-rent-paying tenants (by removing their ability to evict)” does too….Because “[w]e created this confusion,” we have an obligation to fix it. Gee v. Planned Parenthood of Gulf Coast, Inc., 586 U. S. 1057, 1059 (2018) (THOMAS, J., dissenting from denial of certiorari). That obligation is particularly strong here, as there is good reason to think that the Ninth Circuit erred. Under the logic of Cedar Point, and our Takings Clause doctrine more generally, an eviction moratorium would plainly seem to interfere with a landlord’s right to exclude. See Alabama Assn. of Realtors
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
