George Will Weighs In in Support of Harmons’ Rent Control Challenge


Supreme Court should take on New York City’s rent control laws

By George F. Will, Published: February 15

James and Jeanne Harmon reside in and supposedly own a five-story brownstone on Manhattan’s Upper West Side, a building that has been in their family since 1949. But they have, so to speak, houseguests who have overstayed their welcome by, in cumulative years, more than a century. They are the tenants — the same tenants — who have been living in the three of the Harmons’ six apartments that are rent controlled.

The Harmons want the Supreme Court to rule that their home has been effectively, and unconstitutionally, taken from them by notably foolish laws that advance no legitimate state interest. The court should.

This “taking” has been accomplished by rent-control laws that cover almost 1 million — approximately half — of the city’s rental apartments. Such laws have existed, with several intervals of sanity, since the “emergency” declared because returning soldiers faced housing shortages caused by a building slowdown during World War I.

Most tenants in rent-controlled units can renew their leases forever. Tenants can bequeath their rent-controlled apartments — they have, essentially, a property right to their landlord’s property — to their children, or to a friend who lives with them for two years. This is not satire; it is the virtue of caring, as understood by liberal government.

The tenants in the Harmons’ three rent-controlled units are paying an average 59 percent below market rates. The Harmons would like to reclaim one apartment for a grandchild, but because occupants of two of the units are over 62, the Harmons would have to find the displaced tenant a comparable apartment, at the same or lower rent, in the same neighborhood.

In addition to rent control’s random dispersal of benefits — remember, half of the Harmons’ apartments are uncontrolled — rent control is destructive because it discourages construction of new apartments and maintenance of existing ones.

Thus it creates the “emergency” it supposedly cures.

It exemplifies what the late New York senator Pat Moynihan called “iatrogenic government.” In medicine, an iatrogenic illness is induced inadvertently by a physician’s treatment.

Rent control is unconstitutional because it is an egregious and uncompensated physical occupation of property. The Constitution says that private property shall not “be taken for public use, without just compensation.” The Harmons get no compensation for being coerced into privatized welfare: The state shows compassion to tenants — many of whom are not needy; one of the Harmons’ entitled tenants owns a house on Long Island — by compelling landlords to subsidize them.

A property right in a physical thing is a right to possess, use and dispose of this thing. Because government-compelled possession of property by a third party is an unambiguous taking, the Harmons’ property right has been nullified.

John Locke, an intellectual source of American freedom, said that property rights, which he defined to include rights to “lives, liberties and estates,” exist prior to, and independent of, government, and their preservation is “the great and chief end” for which governments are founded. Property rights provide a sphere of personal sovereignty, a zone of privacy into which government should be able to intrude only with difficulty and only so far. Because they are the basis of individual independence, America’s Founders considered property rights the foundation of all other liberties, including self-government — the governance of one’s self.

The Harmons’ case illustrates government’s steady and no longer stealthy desire to transform property from a fundamental right into an attenuated, conditional privilege. Government would like the right to be contingent on whatever agenda it has for ameliorating “emergencies” it causes.

The Supreme Court’s worst decision of this century, the 2005 Kelo ruling, held that government may take private property for the spurious “public use” of giving it to a third party that will pay the government higher taxes than the original owner would. The Harmons’ case is an occasion for the court to begin making amends for Kelo.

In the 1920s, even Justice Oliver Wendell Holmes, who was excessively permissive regarding what governments could legislate, said rent-control laws were on the “verge” of being unconstitutional. Surely a substantial regulation — which a physical occupation is — of real property violates the Fifth Amendment’s Takings Clause if it does not substantially advance legitimate state interests. The court also has held that a regulation of real property violates the Takings and Due Process clauses if it serves no “public use” or is “arbitrary.”

Are the arbitrary distribution of unmerited benefits and the cultivation of an entitlement mentality among renters a “public use”? If not, rent control is unconstitutional.

Source: The Washington Post

9 thoughts on “George Will Weighs In in Support of Harmons’ Rent Control Challenge

  1. >I hope a patriotic justice loving law firm would take this whole issue and bring a class action law suit on behalf of all small owners who are all victims of these criminal and unjust and un-American laws.Any time one naive citizen invests his life saving in purchasing a small property and occupies part of it for his own use,should be able to evict any and all whom he does not want to live with.

  2. >Yes, an eligible successor tenant must live with the prime tenant for at least two years — a small price to pay for perennial rights to occupy a below market rate apartment. A property owner is not allowed to charge the successor tenant a vacancy increase that he would otherwise receive if someone else moved into the apartment- another price paid by the owner for a tenant he had no choice in selecting.

  3. >Seems to me the state has some right to try to maintain a reasonable level of moderate rate apartments. But I see no legal justification for the right of succession. Justice could be served if the state compensated an owner (say in a property tax abatement) for most of the difference between the controlled rent and the market rent for the ORIGINAL controlled tenant but did not permit succession so apartments became decontrolled when original tenant left.

  4. >My grandmother and then later my parents ran the building that my wife and I now own. I remember the frustrated comments about what landlords can and cannot do with their own property in the State of New York. As a kid growing up and learning about the Constitution, I used to think that my folks just never found the right lawyers to pursue their cause. Well, now I know better, and although they are all gone now, I can usually hear my dad chuckling in my ear when I am confronted with the latest version of unconstitutional BS brought on by these laws.

    I just hope that the Supreme Court sees the clear argument to strike down ALL of these laws and not buy into the dubious distinction between rent-controlled and rent-stabilized.

  5. >I live in a rent stabilized unit. I am one of the lucky ones. I am an original tenant as my parents died. I am 62. I dont feel I should be thrown out but I must admit it is not fair to the landlord to lose the apartment forever.I live in a large building. The rules have been changed so wealthy tenants lose their rights. If you make $250,000 a year for 2 years and pay $2,500 a month you lose your rights. Right now I feel a middle ground should be reached. Maybe the rules couls sunset in 7 or 10 years to give people time to adjust. Changing the rules abruptly and putting seniors homeless is unacceptable and cruel.

  6. >What about senior citizens who are landlords? My father is being harassed by a young tenant, who is constantly screaming at him and has a new complaint every week. He is in frail health and is seeing a cardiologist weekly. He has put thousands into this apartment in 9 months she is there, but it is no use. He is in his eighties, and would like to continue to live in this house which he has lived in for 50 years, but he is being forced out. He cannot raise the rent, and he must renew her lease. Is this fair?

  7. >"Wealthy tenants lose their rights". Since when a household earning $199,999.99 (it is $200,000 as per the revised RS Law) a year 2 years in a row is considered so poor that it is worthy of a housing subsidies. HHS Poverty Guidelines are a fraction of this amount. Even if you go with 150% of the HHS poverty levels you are still nowhere near $200K. If the State wants to be consistent they should force ConEd, a private sector company, supply gas and electricity to these poor, c $200K a year earning folks at 59% discount?

  8. >There isn't actually an income limit (which is $250k now, by the way) unless your rent is above $2500/month. That means a person making a million dollars a year (or a billion) qualifies for a rent stabilized apartment provided their rent is below $2500. I'm pretty sure if you look up "arbitrary and capricious" in Black's Dictionary, they use that as an example…

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