I admit that among the Constitutional issues which come to mind when discussing the new FISA Bill, many are of greater significance than the one I am about to discuss; but I want to draw attention to one more potential constitutional violation – namely that this bill constitutes a taking of property without compensation in violation of the Fifth Amendment. Before I begin, I will admit that my argument is not a slam-dunk winner and will require an expansive view of the takings clause; that having been said, I think a good case can be made – and considering how reverently the takings clause is seen by conservative judges and justices, it could at least make them put their money where their mouth is.
The Fifth Amendment prohibits "private property [from being] taken for public use without just compensation." The FISA Bill is granting immunity from civil lawsuits to certain telecom companies. So is this a taking of property?
First, are lawsuits property? While we normally think of real property when talking about the takings clause – it is not limited to real property – it applies to personal property, intellectual property, contacts and many other types of “property.” With certain restrictions, lawsuits and other ‘rights of action’ have been considered property. They can be transferred; they can be used as collateral for loans; they can be seized to pay creditors, especially in Bankruptcy; they can be divided between the parties in a divorce; in short, lawsuits have in many ways been seen as property. In this case a number of lawsuits are currently pending. The plaintiffs have invested money, time and effort in developing those lawsuits. To me a credible argument can be made that these suits are indeed property.
Secondly, is the grant of immunity a “taking?” Granted, the Federal Government is not seeking to take title to the lawsuits (e.g. demanding an assignment of rights in the lawsuit). Rather they are enacting a law, which takes all value away from the lawsuit. In Lucas vs. South Carolina Coastal Commission, the Supreme Court held take a regulation that essentially removed all economic value of a piece of property, even though title was not changed, does amount to a “taking.”
Do these lawsuits have a value (from which just compensation can be determined)? Clearly these lawsuits are in preliminary stages and it is difficult to value them. However, much has been invested in them, and it remains possible to determine their value. How? While the Telecoms might be immune from judgment, discovery in the takings cases could be conducted to determine the underlying facts and thereafter a judge could determine the likelihood of success and value of the underlying lawsuits.
Honestly, do I believe that there is a great chance of recovery on the takings claim? No, but I do think there is a chance of recovery and as stated above, even if these cases were to be lost, it would require some conservative jurist to rethink their most cherished constitutional protection.
Any thoughts?