The other day I wrote about how federal building codes preempt state law and the absurd logic supporting federal building codes.
Today on Limbaugh (via Boehner I think), I heard that cap and tax imposed the California building on the country. It was also said that a provision of the cap and tax imposed an environmental inspection requirement on homeowners when they sell their property.
That provision has three problems. 1) it is a warrantless search, 2) it is a condemnation requiring compensation, and 3) it commandeers municipal workers to enforce federal law.
Regarding the warrantless search, one of my favorite Supreme Court cases is CAMARA v. MUNICIPAL COURT, 387 U.S. 523 (1967). Camara was charged with housing code violation for refusing to allow housing inspectors to perform a warrantless search of his apartment. City officials had no knowledge of violations; they wanted to go in and look for them.
In ruling against the city, Justice White said: ”It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” The anomaly comes from the opposite reasoning: the city had to contend that Camara had less 4th Amendment protection because he was not committing a crime.
In adopting a zoning ordinance, cities may impose a 25′ setback line, that is, the building has to be more than 25′ from the road. The problem is many existing structures, having been build before the new zoning law, were closer than 25′. The city has two choices: condemn building and pay just compensation to the owner, or allow the violation to continue as a non-conforming. If the owner ever tears down the building and doesn’t rebuild, the next structure has to be 25′.
Doubtless most of the existing houses don’t comply with the California building code or those new restrictions under the cap and tax. Imagine if someone invented an alloy that was exponentially better environmentally and safety-wise than copper wire. Could the federal government enter your house with a warrantless search and compel you to rip out your old wiring without paying for it? If you cannot sell your house because it does not pass the newly passed federal standards, that is a condemnation for which just compensation should be demanded.
Furthermore, consider the fact that when the house was built it was inspected and approved by the municipal building inspector. You built your house in reliance of the building inspector’s approval. Is that approval now revoked?
The third point – commandeering of municipal officers – I addressed in my first post. Briefly, the building and zoning officer’s enforcement power is limited to enforcing the lawfully adopted local building code. If there is a federal code, who is going to enforce it? Can the federal government grant local government’s the power to make and adopt laws if the state legislature has not? Will the alleged violations be enforced in federal courts by the municipal building officer?
State and local politicians ought to be alarmed at the authority that’s being taken from them.