Conn. Firefighter Case Could Haunt Sotomayor

Charts Show USD Could Resume Its Downtrend

"As Naked an Abuse of Government Power as Could be Imagined"

How the Sotomayor nomination revived the debate over eminent domain abuse

Damon W. Root

Property rights were probably the last thing on President Barack Obama's mind when he selected Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter. But that hasn't stopped Sotomayor's nomination from reigniting the long-simmering national debate over the use and abuse of eminent domain.

The controversy centers on Sotomayor's vote in a 2006 eminent domain case, Didden v. Village of Port Chester. New York entrepreneur Bart Didden says Port Chester condemned his land after he refused to pay $800,000 (or grant a 50 percent stake in his business) to a developer hired by the village. One day after Didden refused to pay those bribes, Port Chester began eminent domain proceedings against him.

As University of Chicago law professor Richard Epstein put it, "The case involved about as naked an abuse of government power as could be imagined." But that didn't stop Judge Sotomayor and two of her colleagues on the 2nd Circuit Court of Appeals from upholding the district court decision that ruled in favor of the village.

Still, this ugly decision wasn't entirely without precedent. Didden came on the heels of the Supreme Court's notorious 2005 decision in Kelo v. City of New London, which endorsed the government's power to seize property from one private party and hand it over to another so long as the taking was part of a "comprehensive" redevelopment scheme. That decision sparked nationwide outrage on both sides of the political aisle, including the passage of laws protecting property rights from Kelo-style abuse in 43 states. (The Supreme Court declined to hear Didden's appeal.)

None of that is likely to derail Sotomayor's nomination, however, which the Senate is fully expected to approve next month. But this renewed national focus on eminent domain abuse might still benefit a group of long-suffering property owners in Brooklyn, New York, who have been waging a five-year battle against the combined forces of Mayor Michael Bloomberg, the Metropolitan Transit Authority (MTA), real estate developer Bruce Ratner, and the Empire State Development Corporation (ESDC), a controversial quasi-public entity empowered by the state to seize private property via eminent domain.

At issue is the so-called Atlantic Yards project, a 22-acre redevelopment boondoggle centered on a new sports arena for the New Jersey Nets, a professional basketball team that just happens to be owned by Atlantic Yards developer Bruce Ratner. Property owner Daniel Goldstein and others brought suit, claiming the ESDC's use of eminent domain violates their property rights and oversteps even Kelo's generous interpretation of the Constitution's Public Use Clause. In particular, the plaintiffs argue that the alleged "civic benefits" of the project—including a fancy arena designed by celebrity architect Frank Gehry—were just pretexts used to justify handing both private and public land over to a politically-connected developer without considering any competing proposals. Last year the Supreme Court declined to hear arguments in their case, Goldstein v. Pataki, which is now working its way through state court.

This week the saga went from bad to worse, as the MTA, which controls the central portion of the land needed for the project, released a disastrous new plan. Consider this: In 2006 the MTA agreed to sell Ratner its 8-acre Vanderbilt rail yard—which had been appraised at over $200 million—for a lump-sum payment of just $100 million. Now the MTA says Ratner can pay just $20 million upfront, with the rest due over the next 22 years.

As the New York Post (which supports the Atlantic Yards project) declared in an editorial attacking the new deal, "After pleading poverty, jacking up [subway] fares and squeezing $2 billion from Albany, the MTA is now flush with cash. Or so one might think—if the agency OKs a plan to let a developer pay for air rights over the Atlantic Avenue rail yard on a 22-year layaway plan."

It's also worth noting that Ratner recently fired Frank Gehry, whose status as a global architectural celebrity had been one of the major "civic benefit" talking points in favor of the redevelopment. This prompted New York Times architectural critic Nicolai Ouroussoff to denounce Ratner's actions as "a shameful betrayal of the public trust, one that should enrage all those who care about this city." (The New York Times, by the way, currently operates out of a Times Square skyscraper built in partnership with Bruce Ratner that sits atop land seized via eminent domain.)

So what happens next? The state will no doubt approve this sweetheart deal just as it approved the previous one. But Ratner still needs to sell more than $500 million in arena bonds and break ground before year's end in order to qualify for tax-exempt status. Here's hoping Goldstein's lawsuit, a lousy economy, and renewed public outrage over eminent domain abuse make the Atlantic Yards the perfect size to fail.

Tax Increases Could Kill the Recovery

The cap-and trade levy would hit low-income earners especially hard.

MARTIN FELDSTEIN

The barrage of tax increases proposed in President Barack Obama's budget could, if enacted by Congress, kill any chance of an early and sustained recovery.

Martin Kozlowski

Historians and economists who've studied the 1930s conclude that the tax increases passed during that decade derailed the recovery and slowed the decline in unemployment. That was true of the 1935 tax on corporate earnings and of the 1937 introduction of the payroll tax. Japan did the same destructive thing by raising its value-added tax rate in 1997.

The current outlook for an economic recovery remains precarious. Although the stimulus package will give a temporary boost to growth in the current quarter, it will not be enough to offset the combined effect of lower consumer spending, the decline in residential construction, the weakness of exports, the limited availability of bank credit and the downward spiral of house prices. A sustained economic upturn is far from a sure thing. This is no time for tax increases that will reduce spending by households and businesses.

Even if the proposed tax increases are not scheduled to take effect until 2011, households will recognize the permanent reduction in their future incomes and will reduce current spending accordingly. Higher future tax rates on capital gains and dividends will depress share prices immediately and the resulting fall in wealth will cut consumer spending further. Lower share prices will also raise the cost of equity capital, depressing business investment in plant and equipment.

The Obama budget calls for tax increases of more than $1.1 trillion over the next decade. Official budget calculations disguise the resulting fiscal drag by treating Mr. Obama's proposal to cancel the 2011 income tax increases for taxpayers with incomes below $250,000 as if they are real tax cuts. The plan to modify the Alternative Minimum Tax to avoid increases for some taxpayers is also treated as a tax cut.

But those are false tax cuts in which no one's tax bill actually declines. In contrast, the proposed tax increases are very real. And despite the proposed tax increases, the government's new spending and transfer programs would cause the annual budget deficit in 2019 to exceed $1 trillion, or 5.7% of GDP.

Mr. Obama's biggest proposed tax increase is the cap-and-trade system of requiring businesses to buy carbon dioxide emission permits. The nonpartisan Congressional Budget Office (CBO) estimates that the proposed permit auctions would raise about $80 billion a year and that these extra taxes would be passed along in higher prices to consumers. Anyone who drives a car, uses public transportation, consumes electricity or buys any product that involves creating CO2 in its production would face higher prices.

CBO Director Douglas Elmendorf testified before the Senate Finance Committee on May 7 that the cap-and-trade price increases resulting from a 15% cut in CO2 emissions would cost the average household roughly $1,600 a year, ranging from $700 in the lowest-income quintile to $2,200 in the highest-income quintile. Since the amount of cap-and-trade tax rises with income, the cap-and-trade tax has the same kind of adverse work incentives as the income tax. And since the purpose of the cap-and-trade plan is to discourage the consumption of CO2-intensive products, energy or means of transportation by raising their cost to consumers, the consumer-price increases would be the same for a 15% reduction in C02 even if the government decides to give away some of the CO2 emissions permits.

But while the cap-and-trade tax rises with income, the relative burden is greatest for low-income households. According to the CBO, households in the lowest-income quintile spend more than 20% of their income on energy intensive items (primarily fuels and electricity), while those in the highest-income quintile spend less than 5% on those products.

The CBO warns that the estimate of an $80 billion-a-year tax increase could be significantly higher or lower, depending on how the program is designed. The Waxman-Markey bill currently before Congress calls for reducing greenhouse gasses 20% by 2020 and by an incredible 83% by 2050. As the government reduces the amount of CO2 that is allowed, the price of the CO2 permits would rise and the pass-through to consumer prices would also increase.

The next-largest tax increase -- with a projected rise in revenue of more than $300 billion between 2011 and 2019 -- comes from increasing the tax rates on the very small number of taxpayers with incomes over $250,000. Because this revenue estimate doesn't take into account the extent to which the higher marginal tax rates would cause those taxpayers to reduce their taxable incomes -- by changing the way they are compensated, increasing deductible expenditures, or simply earning less -- it overstates the resulting increase in revenue.

Since the projected revenue from this source is already designated to be used for Mr. Obama's health plan, some other tax increases will be needed. Moreover, Mr. Obama's budget characterizes the projected $634 billion outlay for health-care reform as just a down payment on the program. The budget notes that there would be "additional resources and new benefits to be determined with Congress." Those additional resources would no doubt be even higher taxes.

The third major tax increase is the plan to raise $220 billion over the next nine years by changing the taxation of foreign-source income. While some extra revenue could no doubt come from ending the tax avoidance gimmicks that use dummy corporations in the Caribbean, most of the projected revenue comes from disallowing corporations to pay lower tax rates on their earnings in countries like Germany, Britain and Ireland. The purpose of the tax change is not just to raise revenue but also to shift overseas production by American firms back to the U.S. by reducing the tax advantage of earning profits abroad.

The administration is likely to be disappointed about its ability to achieve both goals. Bringing production back to be taxed at the higher U.S. tax rate would raise the cost of capital and make the products less competitive in global markets. American corporations would therefore have an incentive to sell their overseas subsidiaries to foreign firms. That would leave future profits overseas, denying the Treasury Department any claim on the resulting tax revenue. And new foreign owners would be more likely to use overseas suppliers than to rely on inputs from the U.S. The net result would be less revenue to the Treasury and fewer jobs in America.

It's not too late for Mr. Obama to put these tax increases on hold. If he doesn't, Congress should protect the recovery and the longer-term health of the U.S. economy by voting down this enormous round of higher taxes.

Mr. Feldstein, chairman of the Council of Economic Advisers under President Reagan, is a professor at Harvard and a member of The Wall Street Journal's board of contributors.

What Could Possibly Go Wrong?

Michael C. Moynihan

Matthew Yglesias wonders why the government can't decide that those making yearly salaries in excess of $10 million are unworthy of such obscene levels of compensation and, in the service of "egalitarianism," couldn't simply apply "arbitrary limits" to tax away this excess wealth:

What if we had a 95 percent marginal tax rate on income over $10 million? What dire consequences would flow from this? Perhaps a certain outflow of top-flight baseball talent to Japan. But I don't see this leading to any kind of economic calamity.

Yes, what could possibly go wrong? And why, since 1980, has every country with a functioning economy lowered top marginal tax rates if there are no negative effects of massive government wealth distribution? Besides, says Yglesias, a confiscatory tax policy would be something of a relief to a great majority of the upper classes:

But my strong suspicion is that at the end of the day most of the super-rich would ultimately find it a relief to get off the treadmill of status-competition and the not-quite-so-rich would be thrilled to see their betters cut down to size.

Eastern Europe's woes

The bill that could break up Europe

If eastern Europe goes down, it may take the European Union with it

TUMBLING exchange rates, gaping current-account deficits, fearsome foreign-currency borrowings and nasty recessions: these sound like the ingredients of a distant third-world-debt crisis from the 1980s and 1990s. Yet in Europe the mess has been cooked up closer to home, in east European countries, many of them now members of the European Union. One consequence is that older EU countries will find themselves footing the bill for clearing it up.

Many west Europeans, faced with severe recession at home, will see this as outrageously unfair. The east Europeans have been on a binge fuelled by foreign investment, the desire for western living standards and the hope that most would soon be able to adopt Europe’s single currency, the euro. Critics argue, with some justice, that some east European countries were ill-prepared for EU membership; that they have botched or sidestepped reforms; and that they have wasted their borrowed billions on construction and consumption booms. Surely they should pay the price for their own folly?

Yet if a country such as Hungary or one of the Baltic three went under, west Europeans would be among the first to suffer (see article). Banks from Austria, Italy and Sweden, which have invested and lent heavily in eastern Europe, would see catastrophic losses if the value of their assets shrivelled. The strain of default, combined with atavistic protectionist instincts coming to the fore all over Europe, could easily unravel the EU’s proudest achievement, its single market.

Indeed, collapse in the east would quickly raise questions about the future of the EU itself. It would destabilise the euro—for some euro members, such as Ireland and Greece, are not in much better shape than eastern Europe. And it would spell doom for any chance of further enlarging the EU, raising new doubts about the future prospects of the western Balkans, Turkey and several countries from the former Soviet Union.

The political consequences of letting eastern Europe go could be graver still. One of Europe’s greatest feats in the past 20 years was peacefully to reunify the continent after the end of the Soviet empire. Russia is itself in serious economic trouble, but its leaders remain keen to exploit any chance to reassert their influence in the region. Moreover, if the people of eastern Europe felt they had been cut adrift by western Europe, they could fall for populists or nationalists of a kind who have come to power far too often in Europe’s history.

How to avert disaster

The question for western Europe’s leaders is how best to avert such a disaster. Although markets often treat eastern Europe as one economic unit, every country in the region is different. Three broad groups stand out. The first includes countries that are a long way from joining the EU, such as Ukraine. Here European institutions may help financially or with advice, but the main burden should fall on the International Monetary Fund. These countries will have to take the IMF medicine of debt restructuring and fiscal tightening that was meted out so often in previous emerging-market crises.

Things are different for the countries farther west, all EU members for which the union must take prime responsibility. One much-touted remedy is to accelerate their path to the euro, or even let them adopt it immediately. It might make sense for the four countries with exchange rates pegged to the euro: the Baltic trio of Estonia, Latvia and Lithuania, plus Bulgaria. (Slovenia and Slovakia have joined the euro already.) None of these will meet the Maastricht treaty’s criteria for euro entry any time soon. But they are tiny (the Baltics have a population of barely 7m), so letting them adopt the euro ought not to set an unwelcome precedent for others nor should it damage confidence in the single currency. Yet the European Central Bank and the European Commission firmly oppose this form of “euroisation”, even though two Balkan countries, Montenegro and Kosovo, use the euro already.

Unilateral or accelerated adoption of the euro would make far less sense for a third group of bigger countries with floating exchange rates: the Czech Republic, Hungary, Poland and Romania. None of these is ready for the tough discipline of a single currency that rules out any future devaluation. Their premature entry could fatally weaken the euro. But as their currencies slide, the big vulnerability for the Poles, Hungarians and Romanians, especially, arises from the debt taken on by firms and households in foreign currency, mainly from foreign-owned banks. What once seemed a canny convergence play now looks like a barmy risk, for both the borrowers and the banks, chiefly Italian and Austrian, that lent to them.

Stopping the rot

The first priority for these four must be to stop further currency collapse. The second is to prop up the banks responsible for the foreign-currency loans that are going bad. The pain of this should be shared four ways: between the banks and their debtors, and between governments of both lending and borrowing countries. From outside, these two tasks will necessitate help from several sources: the European Central Bank as well as the IMF, the commission’s structural funds, the European Bank for Reconstruction and Development and perhaps the European Investment Bank. Given the scale of the problem, the lack of co-ordination between these outfits has been scandalous. A third aim must be to get eastern European countries to restart the structural reforms they have evaded thus far.

Bailing out the same mythical Polish plumbers who just stole everybody’s jobs will be hard for Europe’s leaders to sell on the doorsteps of Berlin, Bradford and Bordeaux, especially with the xenophobic right in full cry. German taxpayers are already worried that others are after their hard-earned cash (see article). The bill will indeed be huge, but in truth western Europe cannot afford not to pay it. The meltdown of any EU country in the region, let alone the break-up of the euro or the single market, would be catastrophic for all of Europe; and on this issue there is little prospect of much help from America, China or elsewhere. It is certainly not too late to rescue the east; but politicians need to start making the case for it now.