November 30, 2011 RS Radford, Pacific Legal Foundation
Of all the failed policies of Progressive-era politics, none is more egregious than rent control. And nowhere is the failure of rent control more obvious than in New York City, where high-salaried professionals and rock stars often enjoy a legal “entitlement” to pay rent amounting to a tiny fraction of the value of their apartments.
Originally conceived as class legislation, rent control in New York no longer even pits the haves against the have-nots. It rewards the politically savvy, the well-connected, and the lucky, at the expense of both large and small property owners who make the mistake of providing housing to those who need a place to live. New York courts have long turned a blind eye to the economic insanity and blatant injustice of rent control, reasoning that it’s within the purview of the legislature to enact insane and unjust policies, so long as due process is followed.
Oops, check that. According to a recent decision of the Second Circuit Court of Appeals, due process is no longer required. In fact, a property owner who tried to argue that New York City’s rent regulations violated his due process rights was bounced out of court on the grounds that since (by the Second Circuit’s standards) rent control is not an unconstitutional “taking” of property under the Fifth Amendment, it is not even possible to allege that the law is a due process violation under the Fourteenth Amendment!
The case, Harmon v. Kimmel (formerly Harmon v. Markus) has now been taken to the United States Supreme Court. Pacific Legal Foundation, joined by the Cato Institute and Small Property Owners of San Francisco Institute, has filed a brief supporting Jim Harmon in his quest for justice. You can see the brief here, and read Cato’s take on it here. Prominent law professor Richard Epstein has also weighed inon the Harmon case.
Surprisingly, the Supreme Court has never come down with a blanket statement concerning the constitutionality of rent control. It has upheld rent regulations under particular circumstances (wartime emergencies, for example), and declined to strike down others because of problems with the legal theories under which they were challenged. It should not be unreasonable to expect the Court at least to direct the Second Circuit to listen to Jim Harmon’s due process argument.