Somin on the Recent Takings Clause Cases

Ilya Somin (George Mason) has posted Two Steps Forward for the 'Poor Relation' of Constitutional Law: Koontz, Arkansas Game & Fish, and the Future of the Takings Clause (Cato Supreme Ct. Rev.) on SSRN.  Here's the abstract:

Property rights protected by the Fifth Amendment’s Takings Clause have long been “relegated to the status of a poor relation” in Supreme Court jurisprudence. Over the last 25 to 30 years, however, Takings Clause issues have been more seriously contested in the Court than previously, and property rights have had a modest revival. During the 2012–2013 Supreme Court term, property rights advocates won notable victories in Arkansas Game & Fish Commission v. United States and Koontz v. St. Johns River Water Management District.

This article considers the significance of Arkansas Game & Fish and Koontz, arguing that both cases are potentially important victories for property rights, and that the Court decided both correctly. But because both rulings also left some key issues unresolved, their full impact may not be evident for some time to come.

In Part I, I discuss Arkansas Game & Fish, the less controversial of the two cases. The Court’s unanimous decision makes clear that when the government repeatedly and deliberately floods property owners’ land, it is possible that the resulting damage qualifies as a taking for which “just compensation” must be paid under the Fifth Amendment. The Court’s unanimity is a rebuke to the extreme position taken by the federal government in the case. But it also leaves a number of crucial issues for later resolution.

Part II considers Koontz, which ruled that there can potentially be a taking in a situation where a landowner was refused a permit to develop his land by a government agency, unless he agreed to, among other things, pay for off-site repair and maintenance work on other land in the area that he did not own. Koontz thereby limits the government’s ability to use permit processes and other land-use restrictions as leverage to force property owners to perform various services. The case could be the most important property rights victory in the Supreme Court in some time. In part for this reason, the Court was much more divided than in Arkansas Game & Fish, with the justices splitting 5-4 along ideological lines. Like the term’s other major Takings Clause case, Koontz leaves some crucial issues for later determination.

Finally, the conclusion briefly discusses the implications of these decisions for the future of constitutional property rights. Although both cases represent incremental progress, there is still a long way to go before property rights cease to get second-class treatment from the Court.

Steve Clowney