Bob Barr

It’s easy to make fun of California, the “Land of Fruits and Nuts,” with its history of “flower power” and its “fragrance free zones”; where environmental whackos are exalted, and Second Amendment supporters demonized. What is not humorous, however, are efforts by officials in the Golden State to use the power of government to destroy property rights and legal contracts.

Welcome to Richmond, California. Officials in this city of 100,000 just northwest of Berkeley have concocted a creative use of the power of “eminent domain” – using it as a hammer to stop banks from foreclosing on property owners who have fallen behind in their mortgage obligations. The problem is, Richmond’s efforts clearly violate the intent and the language of the U.S. Constitution -- the Fifth Amendment to which permits government to take a person’s property only after providing “due process,” and only for a valid “public use” after paying “just compensation.”

Such constitutional provisions obviously mean little to Richmond’s Green Party Mayor, Gayle McLaughlin, who apparently believes taxpayer monies can be used to buy private mortgages at a deep discount in order to save homeowners who are “underwater” in their mortgage obligations to banks, including Wells Fargo. The city then would refinance the loans at a lower rate for the homeowners, who might otherwise have gone into foreclosure.

According to an analysis of this scheme in the Star Tribune, if the bank refuses to sell the loans to the city, the municipality then invokes the power of eminent domain to “seize” the mortgages, and pay the bank reduced “fair market value” for the properties. Lost in all this are the lawful mortgage contracts between the homeowners and Wells Fargo, which allow the bank to claim the properties through foreclosure when the homeowners default.

In McLaughlin’s scheme – reportedly cooked up by law professor Robert Hockett at Cornell University – the “public use” is not the construction of a highway or a government building. The “public use” for which a local government can forcibly purchase private homes at a discount and override the terms of arm’s length mortgage contracts between homeowners and lenders is – according to Hockett -- the “drag on the economy” created by “massive defaults” caused by “underwater loans.”

If the Hockett-McLaughlin analysis seems to make little sense based on any reasoned analysis of the constitutional “takings clause,” it is because it doesn’t.

Bob Barr

Bob Barr represented Georgia’s 7th district in the U.S. House of Representatives from 1995 -2003 and as U.S. Attorney for the Northern District of Georgia from 1986-1990.