This government doesn’t recognize ‘basic freedoms’: John Yoo
John Yoo discusses the Supreme Court narrowing the federal wetland restrictions on ‘Fox News @ Night.’
While left-wing attacks on the Supreme Court continue, the justices demonstrated again last week that simple partisan categories cannot explain their work. In Tyler v. Hennepin County, the court unanimously agreed that the right to property continues even when the government seizes land to recover a tax debt.
Even with a court sharply divided over questions of race, religion and government power, the justices came together to re-affirm the most basic of constitutional freedoms.
Tyler was another case that pitted an individual property owner against a government Leviathan. The plaintiff was a 94-year-old woman who had bought a one-bedroom condo in Minneapolis. After living there until 2010, a rise in neighborhood crime led her and her family to think it would be safer for her to move into a senior community.
In a crisp opinion by Chief Justice John Roberts, a unanimous Supreme Court reversed and reinstated Tyler’s takings clause claim. (AP Photo/J. Scott Applewhite, File)
No one paid her property taxes on the condo after she moved out. It accrued about $2,000 in unpaid taxes plus and about $13,000 in interest and penalties. The county foreclosed on Tyler’s condo and sold it for $40,000. The sale extinguished Tyler’s $15,000 debt, but the county kept the remaining $25,000 for its own purposes.
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Tyler sued under the Fourteenth Amendment’s takings clause, arguing that the county had unconstitutionally "taken" her property (the $25,000 surplus) without just compensation. Stunningly, both the district court and the court of appeals threw out her takings clause suit, reasoning that Minnesota law did not recognize a property owner’s interest in the surplus proceeds from a tax foreclosure sale of which the owner had had adequate notice.
In a crisp opinion by Chief Justice John Roberts, a unanimous Supreme Court reversed and reinstated Tyler’s takings clause claim.
President Joe Biden shakes hands with Chief Justice John Roberts as he arrives to deliver his first State of the Union address at the Capitol, March 1, 2022. (Saul Loeb, Pool via AP)
First, though, Tyler had to survive the county’s challenge to her "standing" to bring her suit. "Standing" required proof of an injury from the county’s retention of the surplus, and the county argued that the plaintiff had suffered no financial harm because her condo was encumbered by a mortgage and unpaid homeowners’ fees in excess of $25,000.
The court rejected that argument because Tyler remained personally liable for those debts. Had she received the surplus, she could at least have paid down some of her remaining obligations.
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The meatier side of the opinion was, of course, its analysis of the "takings" issue. Noting that the takings clause does not itself define property, the court explained the understanding of "property" that informs its decisions. State law is one important source; and Minnesota had enacted a statute providing that an owner forfeits her interest in her home when she falls behind on her property taxes. No interest in the home, the county argued, meant no property; and no property meant no taking of property.
Members of the Supreme Court gather on June 30, 2022, as Ketanji Brown Jackson takes the oaths of office to become the 104th associate justice. (Collection of the Supreme Court of the United States via Getty Images)
The county’s reasoning was too slick for the justices. If state law were the only source for deciding whether a property right existed, then a state could make the takings clause a dead letter simply by denying that the assets it wished to seize were "property."
Instead, the court looked to "[h]istory and precedent" (including its own cases) to determine that the government may not take more from a taxpayer than she owes. It traced the origins of that principle back to the Magna Carta of 1215, through English and American statutory and common law, up to the ratification of the 14th Amendment (which applied the takings clause to the states).
The court observed that although a small minority of states at the time of the 14th Amendment’s ratification had deemed delinquent property entirely forfeited by failure to pay taxes, both then and now a clear majority of American jurisdictions required that the taxpayer was entitled to the surplus once the debt was paid.
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Tyler is a significant case for at least four reasons. First, it should upend the laws in jurisdictions that have forfeiture rules like Minnesota’s. (The Pacific Legal Foundation suggests that there are a dozen such states.)
Second, it confirms that a state cannot sidestep the takings clause simply by defining "property" out of existence. Third, it also confirms the centrality of our legal traditions and practices in ascertaining the scope of constitutional rights. In this, it resembles last term’s Bruen case on gun rights.
And fourth, Justice Neil Gorsuch’s concurrence, joined by Justice Ketanji Brown Jackson, featured Tyler’s excessive fines claim. At least those two justices seem prepared to take a hard look at the harsh civil forfeiture statutes that are often used now instead of taxes to finance law enforcement operations.
Justice Neil Gorsuch during the Supreme Court's group photo session in Washington, April 23, 2021. (Erin Schaff/The New York Times via AP, Pool, File)
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Most important, Tyler shows that the justices can still agree where American’s fundamental rights are at stake. Unlike the right to abortion or the power to impose affirmative action, which judges of the past have conjured out of vague provisions of the Constitution, the right to property is clearly protected by the Fifth and 14th Amendments.
As the Tyler court observed, the right to private property pre-existed the founding, formed the understanding against which the Constitution was written, and found expression in the Bill of Rights and the Reconstruction amendments. Tyler re-affirmed that Americans’ right to own property does not exist at the whim of government, but forms a fundamental part of that individual liberty, the protection of which we create government in the first place.
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John Yoo is a law professor at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and visiting fellow at the Hoover Institution. They are the authors of "The Politically Incorrect Guide to the Supreme Court," out from Regnery in June.