Subtitle: “A rumble in the takings jungle” (by F. E. Guerra-Pujol)
This post concludes my extended response to Ilya Somin’s pessimistic essay in Reason on the Takings Clause. Thus far, we have carefully reviewed–and have done our best to optimistically rebut–Professor Somin’s first two arguments for why the Takings Clause does not require compensation for coronavirus shutdowns. But as I mentioned at the end of [my previous post], Prof Somin still has an “ace” up his proverbial sleeve–a formidable argument inspired by the “legal realist” school of jurisprudence. According to Somin, “no judge will want to be seen as impeding an effort to save large numbers of lives in the midst of a grave menace to public health.” Boom!
Somin’s legal-realist argument can thus be summed up in four words: “the house always win.” (Shout out to my former law student and fellow libertarian friend Freddie Torres, who coined this evocative and apt phrase to describe legal realism.) Although this is not a “legal” argument per se, I concede it is Somin’s strongest retort, especially from a realpolitik or probabilistic perspective. For a wide variety of reasons, fighting the government is always going to be an uphill battle, whether it be a convicted felon appealing his sentence or a property owner challenging a regulation as a taking. The odds of winning are even smaller during a great crisis. As the great Richard Posner has often repeated, our courts have rarely stood in the way of the government during times of emergencies, whether it be the enormous growth of secret courts and the surveillance state post-9/11 or the internment of innocent and loyal Japanese-Americans during WWII.
But could we not creatively hoist Somin on his own legal-realist petard? After all, President Donald J. Trump has appointed a record number of federal judges during his first few years in office, pro-conservative and pro-libertarian judges who presumably have all been personally vetted by–horror of horrors!–Mr Leonard Leo himself (of Federalist Society fame). In fact, almost one-third of all federal judges are now “Trump/Federalist Society” appointees! According to this entry in Wikipedia, for example, as of March 2020 the Senate has confirmed no less than 51 judges for the U.S. Courts of Appeals as well as 138 judges for the U.S. District Courts. (There are 179 appellate federal judges and 673 district court federal judges in total.) As such, given that so many federal judges are Trump appointees, Prof Somin’s legal realist argument can cut both ways!
To conclude my review of the descriptive part of Ilya Somin’s pessimistic essay, although the house usually wins, the legal argument in favor of extending the Takings Clause to coronavirus shutdowns is a plausible one under existing law, and given the significant number of Trump appointees who are now on the federal bench, this argument has a non-trivial chance of success! Any takers?