Mark Miller writes for the Washington Examiner about one of U.S. Supreme Court Justice Clarence Thomas’ recent contributions to sound constitutional policy.

Rent control is a bad housing policy that won’t go away. Unfortunately, this term, the U.S. Supreme Court refused to review not one, not two, but three cases that challenged New York City’s 2019 iteration of the bad housing policy, euphemistically labeled “rent stabilization.” But thanks to Justice Clarence Thomas, the proverbial third strike might not be the last for opponents of rent control.

In a statement accompanying the last case the court denied, 74 Pinehurst v. New York. Thomas left the door open and provided a road map for future challenges. 

This is important because rent control programs can be complex. And understanding what the court is looking for in a future challenge is crucial to crafting a successful argument.

While rent control programs vary, they generally function in two basic ways. First, the government caps rent at a certain amount, with that cap sometimes tied to inflation or some other economic indicator. Second, the government requires the property owner to extend leases with tenants at the capped price, regardless of what the owner wants to charge.

When the Supreme Court first approved this type of scheme, it did so in the wake of World War I and the pressures that returning soldiers and wartime put on Washington, D.C., and New York City. The court accepted that these unique circumstances merited approval of “emergency” rent control. Thus, the court temporarily allowed what was at the time seen as a shocking encroachment on long-understood property rights. 

A few years later, the court implied that an end to the wartime emergency should lead to the end of Washington, D.C.’s rent control program. But in the years since, rent control has stayed, even though the “emergency” justifying it has long since passed.