It didn't get much notice, but there was a Supreme Court decision involving Indiana earlier this week that once more let local governments have their evil way with property owners. It wasn't as outrageous as the Kelo decision in 2005, which upended the very concept of private property rights. But it was right in line with other post-Kelo decisions strengthening government's hand and weakening property owners'.
The case was Armour v. Indianapolis, and it involved a property assessment levied by the city to pay for a sewer project in a subdivision. One group of subdivision property owners got financially screwed because they chose one option offered by the city instead of the other one. They sued, only to have the Supreme Court side with the city.
Residents were given the option of paying the $9,000 in installments or a lump sum. Most of the 180 homeowners chose the installment plan, but 28 chose the lump sum. Several years later, the city came up with a new and better sewer system and decided to fund it with a $2,500 yearly assessment against each home. Then it decided to forgive any unpaid assessments against homeowners who had chosen the installment plan, but it refused to give any money to those who had paid in one lump sum.
Could there be a more blatant case of unequal treatment under the law? Could there be a more obvious unfair taking of property against all constitutional principles?
Yet the court sided with the city. The 6-3 majority opinion, written by Justice Stephen Breyer, relied on the highly technical and misnamed “rational basis” review doctrine holding that a legislature “need not 'actually articulate at any time the purpose or rationale supporting its classification.' Rather, the 'burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Get that? The government gets all benefit of the doubt. We get the burden of proof on every conceivable angle.
There are two bad consequences of coming, New York University law professor Richard Epstein says: “First, a deep sense of social unfairness leads to a net loss in public confidence in government. Second, wealth transfers wholly gratuitously from one group of citizens to another.”
The Supreme Court's prime responsibility is to protect the rights of all Americans – and that most certainly includes property rights. If it doesn't do that, what's the point of its existence? Yes, this is a “small case.” But as Epstein reminds us, “bad rules in small cases lead to horrific consequences in bigger ones.”