Remember that 11th Circuit decision we posted earlier, in which the court concluded that riparian rights, although recognized by Florida as property rights, are not "fundamental rights" protected by the Due Process Clause? There, the court held that the City's ban on the construction of docks and piers (except, apparently, city-owned docks and piers) was not subject to due process review because the plaintiffs' riparian rights are not fundamental rights because they are merely "state-created" rights.
Well, as we posted here, it resulted in a cert petition. Yesterday, an amici brief was filed by the National Federation of Independent Business Small Business Legal Center, the Cato Institute, Owners' Counsel of America, and the Rutherford Institute in support.
Here's the Summary of Argument, to give you a flavor of what the brief is arguing:
The Eleventh Circuit’s exclusion of property rights from the substantive protections of the Fourteenth Amendment’s Due Process Clause is a dangerous rule that cannot be allowed to stand. It goes against the text of the Amendment, its original meaning, and longstanding precedent. It also dangerously imperils the rights of property owners—especially the poor, vulnerable minorities, and those with little political influence.In order to ensure that the Due Process Clause provides meaningful protection for property owners, this Court should make clear that any government act confiscating or abrogating property rights is covered by the Clause—regardless of whether the act is characterized as “executive” or “legislative” in nature. To withstand judicial scrutiny, the government must be able to show that its actions restricting property rights have a “substantial relation to the public health, safety, morals, or general welfare.” Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). This standard requires at least a minimal factual showing that the restriction advances the asserted public interests. The Eleventh Circuit’s ultra-deferential approach violates this standard and legitimizes even the most arbitrary restrictions on property rights. It also exacerbates an already deep circuit split over this issue.
Br. at 1-2. Disclosure: we signed on the brief on behalf of Owners' Counsel of America.Stay tuned. We'll post the other briefs in the case as they come in.