Attempts to undermine property rights and confiscate private property, like the recent efforts of the Democratic Socialists of America, are unfortunately not new. For decades, government agencies have used their regulatory authority to restrict what Americans may do with their own property and to undermine its value. Now, property owners from New York and Maryland are asking the Supreme Court to hear their cases and to reinvigorate one of Americans’ most foundational rights. It is past time for the court to begin that process and to ensure Americans’ property is afforded the protection it is constitutionally due.
New York’s DSA politicians discourage owning property, full stop. Not only will owning a vacation home qualify New Yorkers for Mayor Zohran Mamdani’s “pied-a-terre” tax, but the mayor recently published a searchable list disclosing the sensitive personal information of such individuals. Worse still, many middle-class families that are not eligible for the tax were mistakenly included. However, given the comments of Cea Weaver, Mamdani’s appointed “tenant advocate,” that she would like to “seize private property,” it may have been a convenient mistake.
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The DSA, exemplified by Weaver, has not been shy in its disdain for private property and “ESPECIALLY homeownership,” which she claimed “is a weapon of white supremacy masquerading as ‘wealth building’ public policy.” New York has long encroached on property rights through its rent control laws, and the DSA officials are only making things worse. A favorable ruling in Tedford’s Tenancy v. City of New York could grant property owners much-needed relief.
In that case, one couple intended to restore and move into a century-old building that their family has owned since the 1940s. However, New York’s rent stabilization laws do not allow the couple to collect enough income to cover the building’s annual expenses. Though the average monthly rent for a neighboring studio apartment is $3,500, New York’s law does not permit the couple to collect more than $2,584 a month (or just over $31,000 a year) for its six units combined, a mix of one- and two-bedroom apartments. Imagine a one- or two-bedroom apartment in New York City for $430, the average price they would be allowed to charge per unit.
Of course, with rent so artificially low, the couple could not recoup the costs of renting their apartments or the over $80,000 annual property tax, and they certainly could not afford the estimated $1 million cost of repairing and modernizing the building. New York has restricted the use of their private property to provide a public benefit without providing the “just compensation” required by the Fifth Amendment. New York’s actions amount to an unconstitutional taking.
In a similar case out of Maryland, Garner Walls is asking the Supreme Court to hear his case against Prince George’s County after the county denied him a permit, preventing him from building his retirement home. This case, Walls v. Prince George’s County, arose after Walls had spent $40,000 developing land for his retirement home and had received repeated assurances from the county permitting office that he would receive the requisite permits. Despite these assurances, the county denied his permit request to install a septic system and private well on the property.
Instead, the county gave Walls an impossible choice: spend over $2 million to connect his land to the nearest public sewer and water connections or wait to connect his home to an anticipated subdivision that may or may not ever be built. Without water and a sewage system, the land is unusable for its intended purpose.
A string of Supreme Court cases stretching back to the New Deal makes such encroachments possible and, even worse, mundane. As recently as 2005, the Supreme Court allowed the City of New London, Connecticut, to seize Susette Kelo’s land for the building of a Pfizer research facility, citing “economic development” as its proposed public benefit. As Justice Clarence Thomas remarked in dissent, “Though citizens are safe from the government in their homes, the homes themselves are not.”
But another line of Supreme Court decisions provides reason for hope. Frequently, local governments have sought to circumvent property rights by withholding permits unless and until the property owner concedes to some government demand. In Nollan v. California Coastal Commission, the California Coastal Commission attempted to condition a permit to build a home on the owners’ willingness to grant an easement that would allow the public to cross the portion of beach they owned. The court prevented it from doing so.
Similarly, in Dolan v. City of Tigard, an Oregon town attempted to condition a permit to expand a local business’s building on the owner’s willingness to dedicate a 15-foot strip, which sat next to a local creek, as a pedestrian or bicycle pathway. Again, the Supreme Court recognized the owner’s property rights.
As the Constitution’s framers recognized and western thinkers have understood for millennia, property rights are the foundation of liberty. In the words of John Adams, “The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”
Still, private property is increasingly under attack. Yet now, unlike progressive government officials who for decades burdened property rights with permits and regulations, the DSA does not hide its disdain for private property. If given the chance, the DSA would not merely treat property as a second-class right; it would abolish it entirely. The Supreme Court should take these cases and reiterate that property rights are ingrained in our Constitution before they are diminished further or eradicated entirely.
J. Marc Wheat is the general counsel at Advancing American Freedom. Davison Drumm is a research assistant at Advancing American Freedom.