- The Washington Times - Thursday, January 6, 2005

The road to hell is paved with good intentions, or so the saying goes. There is probably no event in recent history that has fomented more good intentions than September 11. Thus began the events leading to an important takings case now in federal court, involving a proposal to promote airport security.

Passage of the Aviation Transportation and Security Act in November 2001 sounded the death knell for Huntleigh USA’s business. Under this legislation, the Transportation Security Administration (TSA) took over the tasks of screening passengers and baggage at airports, putting the Huntleigh company out of business. Before the government took Huntleigh’s business, Huntleigh provided airport security to eight major airlines and dozens of smaller carriers at nearly three dozen airports across the United States. Operating since the 1970s, Huntleigh had contracts for airport security with 47 airports throughout the United States, including the Los Angeles International Airport, LaGuardia Airport, and the George Bush Intercontinental Airport in Houston. Today, many of the former Huntleigh employees continue to do the same tasks they have always done, screening passengers at security checkpoints, serving as security agents and screening baggage, but wearing a TSA uniform instead of the Huntleigh USA uniform.

Huntleigh USA filed a takings case in the U.S. Court of Federal Claims, seeking just compensation for a taking of its property. The government is arguing that it is not constitutionally obligated to pay just compensation for the property that it had taken because the airline industry is “pervasively regulated.” It would be a perverse notion, indeed, if civil liberties could be extinguished by exercise of government power through extensive regulation, when the very purpose of civil liberties is to limit government power in order to protect the rights of the individual.

Practically speaking, however, to buy the government’s argument that it does not have to pay for the property it takes if the industry is heavily regulated means that the government can take with impunity any property in the entire non-military aviation industry, including commercial airlines, air freight companies, private aircraft operations, ground facilities such as airports, airstrips, maintenance and fueling facilities, flight instruction companies, and aircraft production and sales companies.

This is only a start because most major segments of the American economy are also substantially regulated. Indeed, few industries are as highly regulated as land development (zoning, building permits, environmental and historic preservation regulations), yet land developers do recover just compensation for the taking of their property rights. The same is true of the mining industry, which is heavily regulated, yet participants in this industry may recover just compensation for the taking of their property rights. Thus, it is plain that what the government really means to achieve in these cases is less related to the airline industry and more to an overall goal of avoiding the constitutional obligation to pay for the property it has taken. This sweeping, absolutist view of the federal government’s powers which, if adopted by the trial court, would threaten virtually to obliterate private property in the 21st century. The government’s position is at odds with the Constitution and is truly a scary proposition.

The government’s argument also does not hold water in this case. The fact that the federal government pervasively regulated Huntleigh USA’s activities at airports does not mean that Huntleigh should be charged with knowledge of future legisation that it had no reason to anticipate. Huntleigh had no reason to anticipate either that the tragic events of September 11 would occur, or that the federal government would react by permanently shutting down its operations. This is certainly a surprising position for a Republican administration that espouses the concept of an “ownership economy.” Apparently the policy at the top has not gotten through to the Justice Department, which is thwarting the White House’s professed objective.

Fortunately, the government has tried but failed in its attempts to have the court adopt this argument in other cases. Just last year the U.S. Court of Appeals for the Federal Circuit rejected this argument in Cienega Gardens v. United States, holding that the government’s historically pervasive regulation of an industry “does not mean that all regulatory changes are reasonably foreseeable or that regulated businesses can have no reasonable investment-backed expectations whatsoever.” There is no question that the government has a responsibility to ensure airport security. At the same time, the Just Compensation Clause of the Fifth Amendment requires the government to pay for any private property that it takes for public use. What we have to demand from our government as well, however, is that it obey the Constitution while doing so. As Justice Oliver Wendall Holmes warned decades ago, “[W]e are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

Nancie G. Marzulla is president of Defenders of Property Rights.

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