Rent Control to the Supremes?

Nicole Gelinas reports in The New York Post that New York City's infamous rent control laws may soon go before the Supreme Court.

[Jim] Harmon [who owns a five-story brownstone in Manhattan] thinks it's time for a rehearing. He sued New York state and NYC in federal court in 2008. Though two lower courts ruled against him, at least one Supreme Court justice -- no one knows who -- is interested. The court recently asked the city and state to respond to Harmon's petition. If four justices desire, the Supremes could hear the case.

Harmon's arguments are compelling. Consider: The Fifth Amendment says that nobody can be "deprived of ... property without due process of law; nor shall private property be taken for public use without just compensation."

Rent regulations deprive Harmon of his property. These laws aren't like zoning laws, under which Harmon wouldn't be able to build a munitions factory on his home, a perfectly reasonable restriction. Instead, Harmon can't use much of his own property for any purpose. He's a trespasser in his own brownstone. If he doesn't want to renew a tenant's lease, it's tough luck. In fact, Harmon has spent $30,000 in fees trying -- so far unsuccessfully -- to vacate one apartment so that his grandchild can live there. Because tenants in the two other regulated apartments are (like Harmon) older than 62, if he wants "their" space, he has to find them similar apartments at the same or lower price in the same neighborhood.

The fact that Harmon must renew leases over and over is a violation, too, of the Constitution's contracts clause. Rent regulation compels Harmon to sign his name to a piece of paper every year, whether he wants to or not.

What about due process, another constitutional protection? The Constitution holds that laws can't be arbitrary or selective. But that's the definition of rent regulation. The city has declared an emergency -- but half of the city's renters get no protection from that emergency.

Gelinas notes that, even if the case gets heard, "The Supremes could rule narrowly, telling New York to remedy its laws." In addition, as an opponent of zoning and other government regulation of the economy as violations of individual rights, I think it is dangerous to concede that it is okay for the government to deprive people of their property so long as it is "reasonable" or (mis)treats everyone in the same way. Since the above arguments make such concessions, I wonder whether they might set the stage for a bad legal precedent in addition.

Nevertheless, color me cautiously optimistic that these laws could well be ruled unconstitutional.

-- CAV