Disaster or not, fundamental rights should be protected

Shelby Sterling

Property rights are an important part of living in the United States, especially in Texas. In these extraordinary times, they’re in danger—especially at the local level.

The Framers of the Constitution thought it so imperative that they included protection of property rights in the Fifth Amendment of the U.S. Constitution—no deprivation of property without due process and no taking of private property for public use without just compensation.

The latter half of the Fifth Amendment protection is echoed in the Texas Constitution, too. In fact, Texas law goes one step further by making it more difficult for the government to take your property by including stricter protections.

Still, governments have slowly eroded private property rights through a variety of means and methods, like eminent domain, civil asset forfeiture, and heavy-handed environmental regulations. And that was during normal times.

It’s worse now.

In Los Angeles, a city council member suggested that the city should commandeer hotels in order to house the homeless during this pandemic. One legal expert, Professor Erwin Chemerinsky, who serves as dean of Berkley Law at UC Berkley, weighed in with his opinion of the situation. According to Chemerinsky, the Constitution may allow the city to do just that as long as the taking is for public use and the government pays just compensation. The LA city council has yet to take action on this idea, but it is not the only local government to contemplate commandeering private property.

Here in Texas, Tarrant County Judge Glen Whitley issued an executive order in late March claiming that the county had the authority to “commandeer or use private property” for temporary housing or emergency shelters. The public disagreed. Backlash for this authoritarian claim quickly emerged and the removal of this provision followed soon thereafter.

Tarrant County’s power grab did not go unnoticed by state officials either. Texas Attorney Gen. Ken Paxton released an advisory opinion on this issue last week which found that the emergency powers of local officials during a disaster declaration do not include the authority to commandeer private property. In fact, that power is only vested in the governor and comes with some caveats.

The issue with this questionable authority is that it lacks the protections provided by the Fifth Amendment and the Texas Constitution. The original Tarrant County executive order fails to provide those protections to property owners and therefore should be considered unconstitutional.

Local officials cannot be allowed to run amuck and take advantage of a crisis. The Legislature would do well with addressing these issues of overreaching local government authority during declarations of disaster. The powers of local officials need to be reviewed and clarified.

Disasters, like the pandemic we’re living through now, are important to address and the response by our leadership has helped slow the spread of the coronavirus. But when liberty and freedom are at stake for the sake of public health and safety, aren’t we all at risk?

Shelby Sterling is a policy analyst with the Texas Public Policy Foundation’s Government for the People campaign. She can be reached at: ssterling@texaspolicy.com.