Friday, June 18, 2010
From Steve Eagle (George Mason):
Based on existing Supreme Court jurisprudence and the oral argument, until a few weeks ago I was predicting that the Court would find no taking in Stop the Beach Renourishment and then stop. Having held unanimously that there was no taking, the Court didn’t stop.
I agree in principle with Justice Scalia’s assertion that “There is no textual justification for saying that the existence of the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation [Slip Op. at 8.] But here it is simply unnecessary to discuss the issue. The Takings Clause is violated when there is (a) a taking of property, and (b) a failure to pay compensation. Since the Court said 8-0 that there was no taking, and since the requirements are in the conjunctive, the Court should have followed up by going to lunch. I agree with Scalia that sometimes the Court has to decide what a valid claim consists of before declaring that a claim failed [p. 13]. That would have been the case had the owner been deprived of property. I don’t think that Scalia is arguing that there should be a lesser standard for judicial takings than for legislative or administrative takings, so how can an act that would not be a deprivation of property if engaged in by those other branches be a judicial taking?
BTW– if the takings standard doesn’t “vary according to the branch of government,” why didn’t the plurality join in Justice Thomas’ dissent from denial of cert. in Parking Association of Georgia, Inc. v. City of Atlanta, 515 U.S. 1116 (1995) (decrying that Nollan-Dolan established different standards for legislative and administrative takings)?
I am a fan of substantive due process for property deprivations not equating to takings (e.g., government builds a 10-foot fence with no opening one-foot beyond your property line). See 2007 B.Y.U. L. Rev. 899. But Justice Kennedy’s continuing infatuation with due process where the Takings Clause clearly is germane is puzzling. Given the Circuit Courts’ proclivity to invoke the stomach pumping “shocks the conscience” standard of Rochin v. California, 342 U.S. 165, for SDP claims involving land regulation, it’s hard to project that SDP would provide effective protection for property owners.
I do think Kennedy has the better part of the argument when it comes to the fact that the State would have to pay just compensation if there were a judicial taking. [Kennedy, pp 3-4, 8.] Scalia’s rejoinder that the Court could “simply reverse the Florida Supreme Court’s judgment that the [Act] can be applied to the property in question” ducks the point that the Act would not work an impermissible taking, rather, it would work a compensable taking. [Scalia, p. 18.] Kennedy also scored a point with me when he pointed out that the problems with the Williamson County ripeness test, noted in the 4-Justice concurrence in San Remo Hotel, were the result of “reaching out” prematurely. [Kennedy, p. 9.]
In short, I’m well disposed to the Scalia judicial takings approach in principle. But as Justice Breyer said, it’s “better left for another day” [Breyer p. 1]
Posted by Ben Barros
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