October 31, 2005
GELPI Conference: Frank Michelman Tries To Put Justice Scalia in a Box
Metaphorically speaking, that is. Michelman gave a talk at the GELPI Takings Conference raising an interesting issue about squaring the notion of public use articulated in Justice O'Connor's dissent in Kelo v. New London with that implicitly embodied by regulatory takings cases like Lucas v. South Carolina Coastal Council.
Michelman began by stating his view that Kelo was correctly decided as a matter of American Constitutional Law. He then noted that the issue of public use was rarely, if ever, discussed in regulatory takings cases (as opposed to cases, like Kelo, involving explicit exercises of eminent domain). He thought, though, that contrasting the Kelo dissent with cases like Lucas revealed a bind for someone who wants to argue for both a strict construction of public use and broad application of the regulatory takings doctrine as a limit on government regulation.
Litigants in regulatory takings cases usually have presumed that if a regulation is held to be a taking that the public use clause also would be satisfied. But for that to be so in an inverse-condemnation case like Lucas, Michelman said that the implicit meaning of "public use" must be "public purpose". In Lucas, South Carolina's Beachfront Management Act was held to be a regulatory taking of Lucas' property. At the end of the day, South Carolina ended up with the property after paying Lucas just compensation. This, said Michelman, must have been a taking for a public purpose, because the government did not actually intend to put the property to public use.
If this is correct, then it makes a notable contrast with the Kelo dissent. Michelman said that he wasn't accusing charging Justice O’Connor with error or inconsistency. Rather, he was suggesting that the comparison would be problematic to a strict constructionist or textualist like Justice Scalia, who joined O'Connor's dissent in Kelo and was the author of the opinion of the Court in Lucas. Michelman suggested that the two cases embodied inconsistent views of the scope of the public use clause that could only be explained with a normative understanding of the takings clause. This, he thought, put the strict constructionist Scalia in a box.
In the Q&A, I asked whether Justice Scalia could get out of the box by going back to the pre-First English view that the remedy for a regulatory taking is invalidation of the offending government action. Because the government never actually took anything under this view, wouldn't that resolve the public use issue? Michelman said that he didn't think that this would get Scalia out of the box because he thought that Scalia would want to permit South Carolina to engage in regulation like the Beachfront Management Act so long as it paid just compensation.
There was some discussion of whether Scalia could get out of the box by putting Lucas in the same public-use category as blight-clearance cases -- because the modern understanding of public use includes takings to prevent harmful uses, why not allow regulatory takings that also are intended to prevent harm? Michelman said that this wouldn't help Scalia because he rejected in Lucas the notion that prevention of harm standing alone could establish the constitutionality of a regulation.
Having thought about it for a few days, I'm not sure that this last point is correct. In Lucas, Scalia rejected the idea that the mere characterization of a regulation as harm preventing was sufficient to allow the government to use that regulation to render property valueless without incurring the obligation to pay just compensation. It seems to me that this is very different from asserting that the government cannot take property to prevent harm even if it does pay compensation.
I'm also not sure that the central premise of Michelman's analysis -- that the taking in Lucas was for a public purpose, not a public use -- is correct. South Carolina's Beachfront Management Act prevented Lucas from building on his property. If the Act was upheld, the land would remain vacant. If the Act was held to be a regulatory taking, a fair presumption at the time the case was before the Court would have been that South Carolina would pay compensation and leave the property vacant. This would seem to me to be as much a taking for public use as would be an explicit exercise of eminent domain to take property as a wilderness area. Put another way, I don't see anything inconsistent with even a strict notion of public use if the government takes property but ends up not doing anything with that property beyond preserving it in its natural state.
Of course, South Carolina ended up selling Lucas' property to private parties who developed the property. That, however, says more about the unwillingness of the South Carolina government to bear the burden that they put on Lucas than about the case as presented to the Supreme Court.
Comments are open, but as always require approval before posting, so there may be some delay. If you were at the conference and think I'm not representing Michelman's position accurately, please let me know.
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