The Supreme Court must reverse the ruling of a lower court in Love Terminal Partners v. United States.
While public attention is riveted on Democrats with extravagant proposals for government expansion — a Green New Deal, single-payer health care, tuition-free college — few observers have noticed a recent federal court ruling that will, absent Supreme Court intervention, grant the government immense powers to confiscate private property in violation of the Fifth Amendment.
The Fifth Amendment to the U.S. Constitution mandates that private property cannot be taken for public use “without just compensation.” But this clause was eviscerated by U.S. Court of Appeals for the Federal Circuit in Love Terminal Partners v. United States, which held that any property not earning a current positive cash flow can be taken by the government without a dime of compensation. Unless this ruling is reversed on appeal, it will have a devastating impact on the value of millions of properties with excellent prospects for appreciation but no current tenants. And it will put all real-estate investments not earning money at risk of being stolen by the government.
When Southwest Airlines first launched they flew only routes inside of Texas. That way they didn’t need to ask the federal government’s permission for where they could fly (permission that was almost never granted) or how much they could charge.
They launched service based out of Dallas’ Love Field. The airport was supposed to be shut down to commercial service — incumbent airlines had all agreed to move to the new Dallas Fort-Worth — and this plan tied up Southwest’s launch in court. Ultimately Southwest prevailed, the court’s finding that the new airline hadn’t been a party to the agreement not to use Love Field so wasn’t bound by it.
With airline deregulation Southwest would no longer be limited to intra-Texas service. That meant Southwest could compete against American, Braniff and others serving the country from DFW airport from their closer-to-downtown Dallas base.
A lower court decision the Supreme Court is currently considering reviewing has important - and dangerous - implications for property rights.
The Supreme Court is now considering whether it wants to review Love Terminal Partners v. United States, an important takings case decided by the Federal Circuit last year. The odds against any given case being taken by the Court are almost always high. But I hope this one beats them. If allowed to stand, the Love Terminal ruling would have dangerous implications for many future cases involving takings claims against the federal government. NYU/University of Chicago law professor Richard Epstein—probably the nation's leading takings scholar—has a good description of the somewhat convoluted facts of the case: