Takings Clause Argument on Smoking Ban? Fire That Lawyer...

Gosh darn it! Mr. Powers over at Dakota War College appears to have misplaced a fun little post he had yesterday claiming that the indefatigable opponents of South Dakota's new indoor smoking ban would try using South Dakota's takings clause to sue the state for compensation for any business losses:

It’s in the South Dakota Bill of Rights that “Private property shall not be taken for public use, or damaged, without just compensation.” Well, certainly one’s business would be considered private property. And it’s indisputable that because of the passage of this law limiting the use of private property that they will, in fact, incur damages of an economic sort [Pat Powers, "I Think They Ought to Send Their Bill to Jennifer Stalley," deleted from Dakota War College, 2010.11.15].

Why the backpedal and delete? Perhaps the lawyers in the War College peanut gallery (I know at least one such sensible solicitor) pointed out that a takings-clause or eminent-domain suit on indoor air quality will go nowhere. The takings clause applies when the government takes private property for public use. The smoking ban takes no private property. It stops private pollution of public property, the air we breathe in public places (thanks, Bill, for the idea!). Banning smoking indoors is more like forcing a property owner to remove a sign that hangs over the public right of way or chop down a tree that has grown to obstruct the sidewalk or the view at the intersection. The takings clause has no application in such situations where the public use is already established.

Or maybe Pat's hypocrisy alarm went off. He's never stood up for South Dakotans or Nebraskans or Texans facing eminent domain at the hands of a foreign corporation. But let the Legislature and the voters of South Dakota impose an environmental rule that annoys his business pals despite no clear evidence of economic impact, and Pat's up in arms. I guess Pat backed down from exposing his property rights flank.