Thursday, December 19, 2013
Josh Hawley (Missouri) has posted The Beginning of the End? Horne v. Department of Agriculture and the Future of Williamson County (Cato Supreme Court Review) on SSRN. Here's the abstract:
Horne v. Department of Agriculture exposes a fundamental confusion right at the nerve of the Supreme Court’s contemporary takings jurisprudence. Since its 1985 decision in Williamson County Regional Planning Commission v. Hamilton, the Supreme Court has insisted that a property owner who wants to raise a takings claim in federal court must first exhaust any post-deprivation remedies made available by state or federal law. The theory has been that the Fifth Amendment merely requires the government to compensate a property owner for a property invasion, and therefore no taking has occurred unless and until the property owner attempts to obtain compensation and is denied. Any takings claim before the denial of compensation is, in the words of Williamson County, not “ripe.” But this is a mistake - and quite a fundamental one. In fact, the availability of compensation has nothing to do with ripeness. It has to do with remedies. Before Williamson County, courts had held for two centuries that if the government took private property but provided no mechanism for compensating the owner, the owner could obtain equitable relief if the taking was not complete, or damages if it were. No court had ever held that the availability of compensation barred a claim as unripe. This earlier rule reflected an understanding of the Takings Clause markedly different from the one the Court embraced in Williamson County - as a governmental disability, a structural limit on governmental power, rather than as a promise to pay. The Court’s confusion in Williamson County stemmed in large measure from abandoning this older understanding in favor of an interpretation of the Takings Clause as a standing offer to pay. The Horne case suggests how the Court might recover a better conception of the Clause and put its takings jurisprudence back on track.