April 21, 2018

Options for Supreme Court on Trump travel ban

26 June 2017, 01:58 | Latoya Patrick

The parties in Murr v. Wisconsin offered the court three very different approaches to the denominator analysis.

"In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment", he said. The lots were later transferred to his children in the 1990s.

The siblings had argued that the lot lines always define the relevant parcel.

"As the court's most important Justice-at the center of the institution's ideological balance-Justice Kennedy's ability to bridge the divide between left and right on critical issues such as the right to access abortion can not be overstated", Elizabeth Wydra, president of the Constitutional Accountability Center, told CNN.

But the end-of-term business may also produce a major decision on the right of churches and their affiliated organizations to gain equal access to government benefits that are meant to be neutral about religion, along with a highly significant ruling defining the government's power to detain in prison-like conditions immigrants who are facing deportation.

It has sometimes seemed, as the government appeals have developed, that the question of permitting or blocking the immediate enforcement of the presidential order might be the whole story. The court rejected the "formalistic" rules proposed by both the Murrs and Wisconsin. The property was appraised at $400,000 before the Murrs tried to sell it.

After a failed appeals process, the Murrs sued Wisconsin and St. Croix County, claiming the ordinance in question caused an uncompensated taking of their property because the vacant lot can't be sold or developed as a separate lot.

The court emphasized that any denominator test must ascertain, through an "objective" analysis, "whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts". These include the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land. With regard to the third factor, the analysis should give "special attention to the effect of burdened land on the value of other holdings". First, Wisconsin property law - specifically, the merger provision - treats the two parcels as one. The regulations barred building on any lot smaller than one acre of land. Third, the lots are more valuable when combined. If the court does not regard the immigration cases as matters of high urgency, it has the option - although probably no one expects it - to simply do nothing at this time.

The court's selection of a standard over a rule may sound like a property law technicality.

Through their attorneys at the Pacific Legal Foundation, the Murrs had argued that the two properties - the vacant lot and the lot with the cabin - have remained distinct legal entities since the family purchased them separately in the 1960s. But where does the emphasis belong - and who gets to decide?

The reason, he explained, is that when the government regulates land owned by private individuals, "it nearly never says that you can't do anything with all the property you own". These controversial issues likely explain why the justices labored over the case until the penultimate day of opinion announcements.

Chief Justice John. G. Roberts Jr. dissented in an opinion joined by Justices Clarence Thomas and Samuel Anthony Alito Jr.

The Constitution bars the taking of private property by the government without just compensation. The ruling "compromises the Takings Clause as a barrier between individuals and the press of the public interest". "For decades, he has been the court's most eloquent voice on the need to be color blind - why he changed his mind is something historians will debate for decades". The more certain result of Murr is that the takings analysis is now more complex. As I noted at the time Grassley made his remarks, Kennedy had hired a full slate of law clerks for the upcoming October 2017 Term as had all of the other Justices on the Court.

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