Writing in The Wall Street Journal, New York University
law professor Richard Epstein weighs in on Harmon v.
Kimmel, the big rent control case that the Supreme Court may
decide to take up this term:

In broad and emphatic language, the Fifth Amendment to the
Constitution provides that “no person shall be . . . deprived of
life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just
compensation.” Rent control collides with the last prohibition, the
“takings clause.”

All versions of rent-control laws share a single dominant
characteristic: They allow a tenant to remain in possession of
property after the expiration of a lease at below-market rents. New
York even gives the tenant a statutory right to pass on the right
to occupy the premises at a controlled rent to family members who
have lived with them for two or more years. The tenants in Mr.
Harmon’s complaint pay rent equal to about 60% of market value.

The Second Circuit recognized that the Harmons would be entitled to
just compensation when their property is subject to a “permanent
physical occupation.” But following the Supreme Court decision in
Yee v. City of Escondido (1993), the court insisted that
“government regulation of the rental relationship does not
constitute a physical taking.” That comes as a real surprise to the
Harmons when they hear footsteps each night above their
bedroom.

Read the
whole story here. I noted Harmon’s case
last month and discussed the constitutionality of rent control
in this
column.