An Extremist View of Economic Regulation and Environmental Protection

In dissents from decisions on rent control and a decision upholding a city ordinance assisting displaced low income residents, she articulated an extremist view of property rights that would, if she were given the power of a seat on the DC Circuit, have dangerous and far-reaching consequences for environmental protection and government regulation of businesses. She vigorously dissented from a case concerning a San Francisco rule requiring residential hotel owners seeking permission to eliminate residential units and convert to tourist hotels to help replace the lost rental units. She proclaimed that as a result of the decision, "private property, already an endangered species in California, is now entirely extinct in San Francisco." Brown's dissent said the ruling approved "theft" and said it turned democracy into a "kleptocracy."

Brown's theory was effectively that such regulations are not allowed unless property owners agree that the regulations would benefit them economically, which could preclude almost any economic or environmental regulation. Her theory was rejected by the court majority. "However strongly and sincerely the dissenting justice may believe that government should regulate property only through rules that the affected owners would agree indirectly enhance the value of their properties," the majority explained, "nothing in the law of takings would justify an appointed judiciary in imposing that, or any other, personal theory of political economy on the people of a democratic state."

As discussed above, Brown has attacked the long-established principle that governmental action infringing on fundamental rights is subject to strict judicial scrutiny while general social and economic legislation is upheld if it has a rational basis. She has criticized what she has called the "Revolution of 1937," referring to the Supreme Court's decisions declining to strike down New Deal legislation and deferring to legislative judgments concerning economic legislation and regulation.

Indeed, Brown has suggested that she would go back even further than the period just before the New Deal in limiting government's authority. In one speech, she praised the now-discredited 1905 decision in Lochner v. New York, which struck down a New York law protecting workers. Brown called Justice Holmes' famous dissent in the case "simply wrong." In another speech, she claimed that in "the last 100 years," the Constitution has been "demoted to the status of a bad chain novel."

Brown's eagerness to use the power of the courts to undermine government regulation would be especially damaging on the D.C. Circuit, which is widely recognized for its uniquely important role in reviewing federal agency action. Congress has given the court exclusive jurisdiction to review some agency conduct, such as important Federal Communications Commission and environmental matters, and the D.C. Circuit is often the last word on federal agency actions, since the Supreme Court reviews so few lower court decisions.

Share this page: Facebook Twitter Digg SU Digg Delicious