Ilya Somin is a Professor of Law at George Mason University and the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute. He's the author of "Free to Move: Foot Voting, Migration, and Political Freedom, Democracy" and "Political Ignorance: Why Smaller Government Is Smarter," and "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain."

Federal Newswire:

How did emigrating from the Soviet Union inform your journey in terms of your scholarship and shaped your beliefs and legal values?

Ilya Somin:

It's hard to know for sure because obviously we can't really know what would've happened if I was exactly the same as I otherwise am, except that I grew up in the United States or in some other country and had never been born in Russia, then the Soviet Union. I think, and this is just conjecture, that to the extent that it has affected my worldview, it has done so in two ways. 

First, I think I'm the kind of person who temperamentally, if they had grown up in the West or lived in the West their whole lives, would be more likely than not to be on the political left because I'm an intellectual type of person. I have policy tendencies and the like. Certainly not everybody who grows up in the West or who lived their whole lives there tends to be on the left, but a majority are like that. 

Secondly, I think being a member of what in the Soviet Union and to some extent still in Russia today is an oppressed minority has also made me very negative about nationalism of various kinds. I might have had that trait I think even if I had lived my entire life in the US, but I think it's even more so because of my actual background. That has made me more hostile to nationalism even than many other libertarians are because I think some libertarians are overly tolerant of nationalism because they see themselves as generally on the political right. 

Therefore, just as there are people who have no enemies on the left kind of mentality, there are some libertarians, not all by any means, but some who have more of a “no enemies on the right mentality”, and so they give nationalism more credence and credibility than it deserves.

Federal Newswire:

What’s your opinion on when every time the government is enlarged, individual rights are diminished, and therefore you can't reconcile liberty with anti-liberty?

Ilya Somin:

I think what you said is basically right. I don't know if you can say it's always true that every single enlargement of government always restricts liberty. I think there are exceptions, but the exceptions are relatively rare. The rule is when the government spends, regulates, and controls people more, the vast majority of the time it really is inimical to liberty. Moreover, the more it happens, the harder it is to keep it under some kind of control, prevent slippery slope dynamics, and so on.

Federal Newswire:

Does that alarm you and does the ever growing devotion and presence of Marxism on the Left also concern you?

Ilya Somin:

I actually think that Marxism as such has not become more prevalent on the left in recent years. To the extent that we've seen a rebirth of socialism, it's actually mostly non-Marxist forms of socialism.

If you look at the growth of socialism by people like Jeremy Corbyn in Britain and Bernie Sanders in the US and others, interestingly, rarely are they devoted to any kind of distinctively Marxist concepts like class struggle, inevitable stages of history and the like, or in some cases, they even claim that they're not actually going to have government ownership of the means of production as almost all actual Marxist advocate. Instead, what they say is that we can have socialism in the sense of very extensive government control of the economy and civil society and the like, but it won't take the classical Marxist form that we saw in the Soviet Union or in China and the like, and therefore, we'll avoid those problems.

I have argued in some of my writings that this type of socialism, while as a theoretical matter, may have different foundations than Marxism, it has many of the same problems. In particular, even if it does avoid direct state ownership of the means of production, it requires a takeover of so much of the economy as to effectively make the government the entity controlling it, thereby raising the same sorts of problems of abuse of power, lack of adequate knowledge, and other kinds of issues as more traditional Marxist socialism. On top of that, I dispute claims that this form of socialism can remain democratic, as advocates of its say that it can. Even if it could remain democratic, it would still be very dangerous and problematic. 

But I actually disagree with those on the right who say we've had a resurgence of Marxism. For the most part, that's not true, unless you define Marxism so broadly that the concept no longer is useful.

Federal Newswire:

What happens when corporations start to do the bidding of the government and what are the repercussions of a government-run social crediting system, like the one we’re seeing being tested in China?

Ilya Somin:

That's a whole bunch of different issues…But to step back from the specifics to more general, I think on the one hand, the analogy between anything going on in the US and the Chinese social credit system is overblown. 

On the other hand, there is a tendency on both left and right to want to try to get businesses, particularly, but not exclusively large businesses, more under government control in order to promote on the left a more left wing agenda, on the right a nationalist or a social conservative agenda. I condemned that when Elizabeth Warren advocated it. I also condemned that when people on the right like Ron DeSantis and others try to do similar things, like their efforts to try to attack what they call wokeness in corporations, their efforts to get social media platforms to host speech or people that those platforms would like to exclude. 

In my view, both the left and the right would do better to leave these issues to competition and individual choice and the free market. Actors in the market will sometimes make choices that we do not like. But if they do, we have the option of voting with our feet and engaging in competition and choice. Whereas when the government imposes a single unitary standard, whether it be a left wing standard or a right wing one, then that choice is taken away from us and also various other harms follow.

Federal Newswire:

What do you think happens when large corporate entities call for greater amounts of regulations and the power of the government is used as a tool to shut down competition?

Ilya Somin:

This is not a new problem. It's been going on for centuries. There's a long history of large businesses or very established businesses in a particular industry pressuring for regulation that reduces their competition. Because, there are various regulatory burdens that large incumbent businesses can more easily bear than potential new competitors and they're well aware of that. 

There's a long history of these businesses using public interest rhetoric and aligning with various factions on the left or the right to try to suppress their competition. That's not a new thing.

Federal Newswire:

How do we go about improving dialogue to solve these problems we’re facing as a country when we lack a common heritage?

Ilya Somin:

For those who may not know, Eric Siegel is a prominent left wing law professor. He and I don't agree on very much, but it so happens we do agree on this issue. He has a list of various things to improve dialogue between left and right in the legal world, some of which might be adaptable beyond the legal world that are especially adaptable here. I won't go through the entire list of his proposals, but they include such things as having the Federalist Society and the American Constitution Society, the most prominent right and left wing lawyers organizations, have them host more oppositional speakers that are speakers that go against their views, have them do joint events and debates.

He urges federal judges, and I agree [with this next point]. Each federal judge currently hires three or four clerks, recent law school graduates who help them draft opinions. He says that it would be good if they tried to each have at least one who's of an ideology different from that of the judge…A person who doesn't agree with the judge's views on many things is more likely to catch certain errors than a staff member who's ideologically aligned. We're all, most of us, more attuned to mistakes that people opposed to us ideologically make than to the mistakes of "our own side."

He has several other proposals as well. In my piece commenting or responding to his, I added the idea that law schools in particular should try to combat ideological discrimination in hiring because that is a significant phenomenon, which in most cases, not all, but most tend to be discrimination against conservative libertarian professors. Not because right of center people are less likely to discriminate, but because there are very few right of center people in academia to begin with. Therefore, they have fewer opportunities to do so than people on the left. If you have little or no representation of an entire side of the political spectrum on the faculty, that reduces the quality of dialogue. 

For what it's worth, Eric has actually endorsed this proposal when he commented on it on Twitter. There is a lot that can be done. None of it will make all forms of our discourse wonderful and perfect or complete. We won't eliminate the polarization we have, but it could reduce it at the margin.

Federal Newswire:

When did we lose this idea of having more speech is the answer, or did we ever really have it as a value?

Ilya Somin:

I think a lot of people had it as a value. A lot of people still do, but there has always been opposition. 

I think if you look at American history, cycles of censorship or attempts at censorship occur at various times. They tend to occur during crises or during a situation like now when there is deep polarization and therefore more hatred than usual against the other side. That said, at least on the side of legal doctrine, the law is actually more protective of freedom of speech in most areas than it ever has been. I do think some historical perspective is desirable here.

There are efforts to attack it both on the right and the left, but courts have actually been tougher on those efforts in recent years than they were during previous cycles of censorship. [Such as] the 1950s, in the aftermath of World War I, and some other examples that we can mention. 

In the area of free speech, things could certainly be better than they are and there are various kinds of attacks on free speech by both the right and the left; but the resistance to those attacks actually, particularly in the judiciary, has been stronger than in previous periods of outbreaks of censorship in American history.

Federal Newswire:

What's going on in the Supreme Court right now regarding Chevron and deference and where do you think things are going to go?

Ilya Somin:

Chevron is a 1984 Supreme Court decision where the court says that if there's a federal agency that is tasked with enforcing a law or applying it and it interprets that law, then courts are required to defer to the agency's interpretation so long as it's reasonable and certain other criteria are met. 

This is a pretty important decision because obviously we have a large regulatory state. Federal agencies interpret laws as they must on many occasions. This transfers a good deal of interpretive authority away from the judiciary to regulatory agencies, bureaucrats, government officials, and so forth.

There have always been critics of Chevron. Ironically, early on most of them were on the left, whereas most of the defenders of Chevron back in the 1980s when the decision first came down were on the political right. In more recent years, that valence has shifted and right of center legal scholars, judges and others have been very critical of Chevron. Whereas some on the left have begun to defend it more. 

The Supreme Court over the last 15 to 20 years has cut back on Chevron deference in various ways. But right now there is a case before the Supreme Court which in principle could potentially end Chevron deference, which I would favor. I think it's at least as likely, perhaps more likely, that what the court will actually do is cut back on Chevron deference more, but without completely getting rid of it, because there is now what lawyers call three stages of Chevron. 

There is Chevron stage two, which is when you get to the point of determining whether the agency's interpretation is reasonable. Then there is Chevron stage one where before you even get to stage two, the court has to determine whether Congress has spoken to the issue. Because if it has, then you never get to the point of deference. Deference is only supposed to apply if things are ambiguous and what counts as ambiguous is itself somewhat ambiguous. 

Then finally, there's so-called Chevron stage zero where the issue is whether the Chevron doctrine even applies to the situation. For example, the Supreme Court has said that Chevron does not apply to so-called major questions, that is when the issue is really big and really important.

Of course, what counts as a major question is itself something of a major question that the court has not fully addressed. In this case, it's possible that we'll get another decision limiting the scope of Chevron deference in this instance by saying that Chevron deference does not apply when it's not clear when Congress seemed to be silent on the issue of whether this is the question that the agency has within its ambit. There might be other ways as well that the court could cut back further on Chevron without getting rid of it. I [don’t] think there are five votes on the Supreme Court for getting rid of Chevron completely, but I hope I'm wrong about that and then maybe the court would surprise us. We'll see.

Federal Newswire:

Why doesn’t Congress more explicitly define the laws they pass, leaving them open to interpretation by the agencies?

Ilya Somin:

Sometimes they do, but I also think some agency discretion, maybe even a lot, is unavoidable when Congress regulates and spends as much as it does. Modern statutes, those passed in the last 20 or 30 years, are on the whole more precise and detailed than those passed say 100 years ago. That's how you get statutes that are many thousands of words long. 

Obamacare is many thousands of words long. The various stimulus bills passed over the last two or three years are enormously long. The Inflation Reduction Act, somewhat misleadingly named but that's what it's called, that's thousands of pages long. 

But even if Congress is trying to be precise, given the enormous amount of stuff that comes within these bills, it's hard for Congress, probably impossible for them to foresee everything. It's hard for them not to give agencies a good deal of discretion, and therefore, it's not simply a matter of Congress sitting down on the job or of Congress wanting to leave a hard issue to an agency so that the agency will get the blame and members of Congress won't. 

Sometimes that happens. But even if that never happened, even if Congress always tried to be as precise as it could possibly be, given the enormous scope of federal spending and regulation, there would still be a lot of issues that Congress couldn't anticipate, a lot of places where it's inevitably imprecise, and therefore, agencies would have a lot of discretion. 

I think if you really want to avoid a lot of agency discretion, you want to take a hard look at the size and scope of federal government intervention in various aspects of our society. To really reduce the power of agencies, you would probably have to have a lot less of that.

Federal Newswire:

Currently there is a Fifth Circuit decision that's out that will make it impossible for folks to pursue property rights claims against state governments. You’ve written on this issue before, can you talk about that?

Ilya Somin:

Until 2019, for about 34 years, there was a Supreme Court precedent which said that you cannot file takings claims against state and local governments in federal court unless you have exhausted every possible avenue of appeal in the state courts. If you've done that, then at that point you still can't go to federal court because of technical legal issues, which say that you can't file a case in federal court that essentially has already been decided in state court. This was a catch-22.

In 2019, in the Nick case, the Supreme Court overturned Williamson County, the 1985 precedent which said that, and they basically said takings clause rights, claims that the state or local government has taken your property and therefore must pay just compensation as required by the Fifth Amendment. They can go to federal court to begin with, much the same way as other federal constitutional rights claims. 

In the case decided by the Fifth Circuit just recently, they had essentially created a very similar, and in some ways even worse, catch-22.

I think therefore in defiance of Nick and also in defiance of various other legal principles this is a case where a bunch of property owners, their property was damaged by the state government of Texas. They tried to file a case against Texas I think, if I remember correctly, initially in state court. 

The State of Texas used a statute that allows them to remove the case to federal court. But then once it was removed to federal court, then the Fifth Circuit decided that it can't be heard in federal court either because they said in order to have a case about takings heard in federal court, there must be specific statutory authorization.

The relevant federal statute that authorizes bringing various takings cases in federal court, they say it covers local governments and it covers the federal government, but it doesn't cover state governments. Therefore, in effect on this theory, if you bring this case in federal court against the state government, they will say, well, there's no proper statutory authorization. But if you bring it in state court, then the state government can remove the case to federal court. But after removing the case to federal court, then they can say that there's no jurisdiction in the federal court and therefore the case has to be dismissed.

This is in some ways an even worse catch-22 than the catch-22 before Nick was. There you can at least bring the case in state court even if you couldn't bring it in federal court. But on this theory, if it holds, you cannot bring this case if it's a state government defended either in federal court or in state court. 

I think this certainly goes against Nick, which specifically says you cannot have this catch-22. It goes against basic common sense and long-standing constitutional principles, which say that at least in the vast majority of cases, you can bring constitutional cases against a government that has violated your constitutional rights. 

Even if there isn't the specific statutory authorization, you can bring the case directly under the Constitution. Even more amazingly, the Fifth Circuit opinion, which does this, it's only a few sentences long; it doesn't even cite the Nick case much less tried to distinguish this case from Nick, nor does it cite any other relevant Supreme Court precedence in the takings clause area. 

There was then later an attempt to take the case en banc, that is have it heard not just by a three judge panel, but by the entire Fifth Circuit, which has something like I think at this point 18 or 19 judges. But the Fifth Circuit chose not to take the case en banc. They voted 11 to five not to take it.

It's not entirely clear why various judges, who I suspect do not agree with the panel decision, chose not to take it en banc. But I suspect it's because there are many judges, including on the Fifth Circuit, who just really don't like taking cases en banc and say there's a strong presumption against it. As a result, I think some judges who if the case did go en banc would vote to overturn the panel that some of those judges chose not take it en banc. At this point, there is an effort to bring the case before the Supreme Court. I have prepared an amicus brief, a friend of the court brief, together with the Cato Institute urging the court to take the case, and I certainly hope that they will.

Federal Newswire:

Are you familiar with the case of when Chief Justice Roberts, writing for the court told the state how to take private property? In this case the property was being taken and put up for auction and the owners were able to demonstrate they never saw the certified letters that were sent and Justice Roberts said to stop sending the certified letters if you don’t want to go through this whole process. What do you think of this?

Ilya Somin:

Chief Justice Roberts, to my pleasant surprise, is actually very good on most property rights issues, especially takings clause issues. But if you ask why there are many judges who are not and who tend to treat them less favorably than other constitutional rights, there is a long history to this. 

It has to do with the progressive and new deal eras when a view emerges, particularly on the left but even extending to some on the right as well, which holds that property rights and other so-called economic rights are first less important than other rights. They just don't have that much value as compared to say free speech rights or criminal procedure rights or others. But also that often they're actively pernicious. 

There are various arguments that were then given and still sometimes used today as to why they're pernicious. But one is that property rights stand in the way of rational and effective government planning, that they prevent for instance, the government from restructuring urban landscapes and other places in order to alleviate various social problems.

Secondly, there was and still is the view that really property rights, for the most part, only benefit the rich. If anything, they enable the rich to exploit the poor in various ways. I think both of these claims are for the most part wrong but they were widely believed, including among judges, legal scholars, pillars [of] the legal profession and so forth; especially during the progressive and new deal eras, which are eras where the thought that was produced at that time still has a lot of influence in the legal world, even if the influence is often indirect. Many of the people influenced by these ideas can't necessarily trace them back all the way to their origins. 

I think over the last 30 to 40 years, there has been somewhat of a revival of property rights in the Supreme Court and also in many state courts, but that revival has been uneven. It's affected some issues more than others. 

There's even been some rethinking of these sorts of claims on the political left, as well as on the right. But on the left, that rethinking has mostly gone on among people other than federal judges. The current crop of left of center federal judges with some exceptions still tends to take a new deal kind of attitude towards property rights. That may be slowly changing, but it hasn't changed yet.

Federal Newswire:

You wrote a book called, "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain." Have you heard that New London is finally going to develop this piece of property that has lain fallow for more than 20 years?

Ilya Somin:

For those who may not know, Kelo is a 2005 Supreme Court decision, which has to do with the public use provision of the Fifth Amendment, which says that the government can only take private property if it's "for a public use." The question is, what counts as a public use? In Kelo, the government took 15 homes, 15 residential properties, by eminent domain and the public use so-called was to give it to...a private developer to produce a privately owned development of various kinds.

The Supreme Court, when the case eventually got to them, in a closed five-four decision they held that even a privately owned economic development qualifies as a public use because they endorsed, as they had previously done in a couple of other cases, what I call the broad view of public use. The idea that a public use is anything that might potentially benefit the public in some way. Even the government doesn't necessarily have to prove that the supposed benefit will actually materialize, which in this case, by the way, it never did.

While Kelo was not the first decision to endorse the broad definition of public use, the Supreme Court had actually first done that all the way back in 1954, in a case called Berman v. Parker. Kelo did call an enormous amount of public attention to this issue. Most of the public, about 80% in polls, really hated this decision. There were four Supreme Court justices who dissented, unlike previous decisions in this area which had been unanimous. It really kicked off a debate over this issue.

As it turns out, what happened in New London itself, the development project there was actually badly conceived. To this day, nothing has actually been built on the condemned property. The initial development plan fell through. Some later efforts also fell through. However, in January of this year, almost 18 years after the Supreme Court decision, the private nonprofit development corporation to which the City of New London had given the property after it was condemned, finally sold it to an actual developer who may in fact build new housing on the land. At least that's what they plan to do. I have tried to contact the developer to ask what exactly they're going to build and on what schedule, but so far they have not answered my queries. 

If you're listening, please tell me, if it's not a secret, what it is that you're planning to build. It's possible that something will finally be built on the condemned land after 18 years or more. But during that time up to now, the only regular users of the condemned property were a colony of feral cats. You can say we've created a feral cat shelter.

But on balance, it probably wasn't worth it. I hope the new development project succeeds, but even that I think will not validate the takings. Of course, the land will have lain empty for almost 20 years by the time something finally does get built, if indeed it does. That's not a great record. Even if you don't care about property rights for their own sake, you don't care about the people who were expelled, even if all you care about is just promoting some new economic development, even that hasn't actually happened.

Federal Newswire:

Does Kelo underscore the danger of reliance on precedence, this stare decisis? 

Ilya Somin:

I agree. Kelo relies heavily on previous Supreme Court precedents, including the Berman case, which I mentioned. Ironically, some of Kelo's reliance on precedent is actually misplaced, as Justice Stevens, the author of the Kelo majority opinion, later admitted. In his opinion, he famously said his decision was backed by a century of precedent. He later had to admit that that wasn't true because the precedent that he cited from the late 19th and early 20th century weren't actually about the public use clause at all.

I actually pointed this out in an article I wrote a year or two after Kelo came down. To his credit, Justice Stevens found out about the article, and later in a 2011 speech, he admitted that he got this point wrong. Although still to his dying day, he believed he got the underlying decision correct. Supreme Court justices rarely admit any errors. It's a credit to him that he was willing to admit a significant error here. But I think you're right that there have to be times when courts should be willing to overturn precedent.

There is an argument for maintaining precedent if it's only modestly wrong or if there is very great reliance interests that have built up over time. But there should be room for overturning flawed precedents, especially if they cause great harm and especially if they are constitutional precedents where the only other way to overturn it is through a constitutional amendment, which under modern conditions is almost impossible to do. I would add that almost every legal thinker on both right and left agrees the precedent should be overturned at least sometimes, especially constitutional precedence.

On the other hand, they also like to cry stare decisis whenever a precedent that they like is overturned. Just as there is fair weather federalism and hypocrisies of other kinds, there's also often fair weather stare decisis that people love to appeal to when it's a case that they like. But they're also happy to throw it out when they really don't like the existing precedent. 

I think precedent does need to be sometimes overturned and the Supreme Court might do well to develop somewhat clearer standards for when that's justified than the standards they have now, though they have tried to develop standards over a series of different cases.