The Supreme Court ruled in December that a taking occurs when a government action gives rise to “a direct and immediate interference with the enjoyment and use of land,” thus allowing the Arkansas Game & Fish Commission to proceed with claims relating to the damage caused by government-induced flooding of a state wildlife management area. (The lower court had bizarrely held that while temporary physical invasions and permanent floods were subject to takings analysis, temporary flooding, even if repeated, was not. For more background and links to Cato’s amicus briefs before the Supreme Court, see Roger Pilon’s commentary.)

On remand to the U.S. Court of Appeals for the Federal Circuit, however, the United States, relying on a single passage from the opinion, contends that the Supreme Court created a new multi-factor test applicable to all regulatory and temporary physical takings claims. Cato has now joined the Pacific Legal Foundation, National Federation of Independent Business, and National Association of Home Builders on a brief supporting the Commission and arguing that the passage upon which the government relies is both non-binding (“dicta” in legal terms) and in any event cannot be read to upset the distinction between regulatory and physical takings that the Court has consistently asserted.

It is well established in the Supreme Court’s takings jurisprudence that government intrusions on private property that permanently deprive the owner of a valuable property interest are to be subjected to the same test, regardless of whether the invasions are permanent or temporary. Under that test, courts are to consider the duration of the government intrusion, along with other information, to determine (1) whether the invasion is the direct cause of injury to the property and (2) whether the injury is substantial enough to subtract from the owner’s full enjoyment of the property and limit his exploitation thereof. If the injury to the property is substantial, it doesn’t matter whether the it was caused by an invasion of limited duration; once it is shown that the government invasion directly and substantially interfered with an owner’s property right, the government has a categorical duty to pay compensation.

In this case, the government’s intrusion permanently damaged significant property — valuable timber, from the destruction of trees — and is thus a compensable taking. The Supreme Court’s decision in Arkansas Game & Fish Commission didn’t modify or overturn the well-settled test for adjudicating physical takings claims, which remains distinct from the test that controls regulatory takings claims.

The Federal Circuit will hear argument in the case later this spring.

National Review’s Ramesh Ponnuru wrote a mischievous piece yesterday at Bloomberg (reposted today by AEI, where he’s a visiting fellow). Entitled “The Supreme Court: No friend of freedom,” the article challenges the “story” that “the Supreme Court has played a crucial, maybe the crucial, role in our country’s progress toward ever greater freedom and justice.” In truth, Ponnuru writes, “the story is false. In our actual history, the court has often been a bystander as freedom and equality have grown — and has frequently been a villain.”

The history Ponnuru then recounts is, not surprisingly, selective – and subject to rather of a different interpretation than he gives it. Thus, during our first 70 years the Court overturned only two federal laws, he tells us, and struck down only 34 state laws and one city ordinance. What he doesn’t tell us is how little the Court had to do during its early days. (Our first two chief justices, John Jay and Oliver Ellsworth, stepped down largely because they were bored.) And the reason the antebellum Court was not more active in defending freedom was, first, because at the federal level bills often didn’t get out of Congress – members took the doctrine of enumerated powers seriously – and when bills did get out, presidents often vetoed them; second, accordingly, most government took place at the state level; and, third, the Bill of Rights did not apply against the states until after the Fourteenth Amendment was ratified in 1868.

Moreover, Ponnuru writes that “on the first occasion [on which Congress overturned a federal statute], the court said Congress was giving the federal judiciary more power than the Constitution allowed.” True. But that’s hardly an example of the Court’s not having been a friend of freedom. Ponnuru’s spin gets it exactly wrong. In limiting its own power in Marbury v. Madison the Court was establishing the fundamental principle that we live under a government of enumerated and thus limited powers, leaving us otherwise free to live our lives as we wish. What could have been a more important decision securing freedom?

Ponnuru goes on to cite a number of bad Court decisions, which is easy enough to do, the thrust of his argument being that Brown v. Board of Education in 1954 has misled us into thinking that the Court is our savior against majoritarian tyranny when in fact it has been the political process, as in the Civil Rights Act of 1964, that has played a far larger role in securing our liberties.

If you’re selective, you can make a case for either side, of course, and Ponnuru is that, ignoring many of the criminal law decisions that have advanced liberty, never mentioning decisions like Griswold v. Connecticut (the right to buy and use contraceptives), Loving v. Virginia (striking state anti-miscegenation statutes), and Lawrence v. Texas (striking state sodomy laws). He even claims “we don’t have the court to thank for free political speech.” True, the Court hasn’t been the best guardian of that form of political speech that takes the name of campaign finance, but it’s been far better than the political branches, especially lately. The truth in all of this, of course, is that both the political and the nonpolitical branches have played their parts in protection freedom. That’s part of the genius of our system.

So what is the point of Ponnuru’s “story”? It starts out, no surprise, with the same-sex marriage cases the Court heard last week. But it concludes on this note:

The mythology of a heroic court distorts our understanding of U.S. history, making us forget that for the most part we secured our status as a free people outside the courts. It makes us more averse to proposals to reduce judicial power than we otherwise would be. … The justices might be more likely to stick with a modest conception of their role, however, if they remember that the court has much to be modest about. (emphasis added)

This is, in short, one more plea for “judicial restraint” – perhaps, even, for “proposals to reduce judicial power.” That’s not what Madison had in mind when he hoped for the courts that “they will be an impenetrable bulwark against every assumption of power in the legislative or executive.”

In Germany enrolled members of a church must pay a tax for the support of the church. I’m sure a lot of American churches would like to have such a revenue source. How’s it working out in Germany? Well, Marketplace radio reports:

Christians — Protestants and Catholics combined — are leaving their churches at a rate of about 300,000 people a year.

No doubt tax avoidance isn’t the only reason for that. But really, if you simply become less interested in religion, why bother to formally renounce your membership? The tax saving is an obvious reason. Marketplace’s John Laurenson talks to one ex-church member:

Stefan, though, no longer pays the church tax that used to gobble up four percent of his salary.

Was it really the money, I ask. Or was it loss of faith? No, he says, it was the money.

Back in April 2000 I attended a lecture at the Smithsonian Institution by Richard Dawkins. Afterward I wrote this to him:

I was struck by your answer to one question. A member of the audience asked why the United States has a stronger movement for religious fundamentalism than other countries even though it has separation of church and state. You replied that you didn’t know; it might be just a coincidence. I was surprised that you didn’t offer what I think is the clear “Darwinian” answer: competition makes individuals and enterprises stronger, while subsidies and protection make them weaker. As I wrote in Libertarianism: A Primer, “businesses coddled behind subsidies and tariffs will be weak and uncompetitive, and so will churches, synagogues, mosques, and temples. Religions that are protected from political interference but are otherwise on their own are likely to be stronger and more vigorous than a church that draws its support from government.”

And indeed scholars of religion often comment that American churches tend to be more vibrant and more robust than European churches, with far more Americans actually in church on Sunday morning than Europeans. Perhaps a guaranteed source of income isn’t all that helpful in the long run.

I was particularly amused by this comment in the Marketplace report, from a businessman who

travels quite a bit in the U.S. and doesn’t much like what he’s seen of the way they fund churches there.

In the States you see churches that sometimes “look a little like they have too much of a consumer orientation,” says Wendland. “Where they play rock music and do all sorts of crazy stuff. I have nothing against rock music but I would (prefer) a church that is doing the right thing for the community and for God but not do stuff to attract a sort of clientele.”

It strikes me that that’s just the argument made on behalf of tax funding for the arts. We have more arts in America than in any country in history. But much of it is labeled “entertainment” and disdained by those who “have nothing against rock music but would prefer arts organizations that are doing the right for the community” rather than having “too much of a consumer orientation.”

Which is why my argument that “Because art is just as spiritual, just as meaningful, just as powerful as religion, it is time to grant art the same independence and respect that religion has. It is time to establish the separation of art and state” seems entirely on point here. 

Last week I posted video from an American Enterprise Institute conference featuring supporters of national curriculum standards—the Common Core—dismissing concerns that implementing the standards might cost lots of taxpayer arms and legs, and laughingly brushing aside concerns that the Common Core might lead to federal control of school curricula. The latter emanated largely from Chester “Checker” Finn, president of the Thomas B. Fordham Institute, whose organization is a leading national standards supporter.

Yesterday news came out that made clear just how serious—and unfunny—concerns about a federal takeover are. According to Education Week, the U.S. Department of Education will start a “technical review process” for the Department-selected consortia creating the national tests to go with the standards. And what will that review look at? Not compliance with accounting standards or something administrative, but test “item design and validation.” That means, most likely (in-depth information from the Department was off-line as of this writing) reviewing the specific questions that will go on the tests. And what is tested, of course, ultimately dictates what is taught, at least if the test results are to have any concrete impact, ranging from whether students advance to the next grade, to whether schools gain or lose funding. Since the ultimate point of uniform standards is to have essentially uniform accountability from state to state, they will have to have some concrete impact, rendering this a clear next step in a major Federal incursion into curricula.

Now, maybe Finn wasn’t aware of any of this last week when he blew me off with knee-slapping zingers about the U.N. taking over the Common Core, but I doubt it: according to Education Week, one of Fordham’s employees, Kathleen Porter-Magee, will be on the federal review team, as will frequent Fordham collaborator William Schmidt of Michigan State University. So either Finn is an extremely hands-off manager, or as he summoned his inner Don Rickles last week he knew very well that federal tentacles were inching even deeper into America’s schools.

Ha, ha, America. Joke’s on you.

David Hogberg reports on “Natalie,” a Washington, D.C., resident who may lose her current coverage when ObamaCare forces her into one of its health insurance “exchanges”:

Natalie increasingly thinks that she’ll have the surgery. However, she notes that if she could keep her insurance and her medical team indefinitely, she’d have the luxury of waiting a year or two to see if she could get the pain under control (or at least live with the pain she has) and avoid an operation. Now, she may have to decide on an operation within a few months so that her current physicians can treat her…

At times, Natalie feels her trust in progressive leadership was betrayed.

“I voted for Obama in 2008 because I couldn’t stand McCain,” she said.

During the debate over Obamacare, President Obama assured the American people, “No matter how we reform health care, we will keep this promise: If you like your doctor, you will be able to keep your doctor. Period. If you like your health care plan, you will be able to keep your health care plan. Period. No one will take it away. No matter what.”

Natalie may lose both.

“I can’t say how disappointed I am because I believed him,” laments Natalie.

It’s getting hard to keep track of all the various trade negotiations going on right now.

As this blog’s readers may recall, in his State of the Union speech, President Obama announced that the United States would begin trade negotiations with the EU. And no doubt you know that the United States, Canada, and Mexico are part of NAFTA.

But less prominently, the United States, Canada, and Mexico are also part of trade talks among various nations in the Pacific region, called the Trans Pacific Partnership (TPP). And now Japan has announced that it would like to join these talks.

In addition, Canada and the EU have been negotiating their own trade agreement for several years now.

And just the other day, Japan and the EU started trade talks.

Oh, and Mexico has suggested a broader NAFTA-EU trade deal.

Got all that? It’s OK if you don’t—I’m not sure I do either.

There are some good reasons to use international trade agreements to promote free trade. The world trading system has been very successful in bringing down tariffs and other protectionist barriers over the past few decades. But the recent proliferation of agreements, with sometimes conflicting rules (going beyond just protectionism), may be steering us away from real free trade. Real free trade would lower trade barriers for all countries, not just for some. Hopefully some day trade negotiations can get back to that principle.

In this Cato podcast, The Daily Beast’s Megan McArdle discusses her recent post, “Health and Human Services Secretary Doesn’t Understand What Insurance Is.”

One might note that HHS Secretary Kathleen Sebelius is also a former insurance commissioner.