Tuesday, June 25, 2019

When Does a Taking Occur?

by Michael C. Dorf

For me, yesterday's most painful decision came in Food Marketing Institute v. Argus Leader Media, in which the Court adopted an expansive (and in my view woodenly textualist) reading of a Freedom of Information Act (FOIA) exception that will make it considerably harder for the public to obtain important information from the government about private actors. I find the decision painful not only because it will harm the public interest (at least in a few cases) but because the Court rejected the position staked out by FOIA and First Amendment scholars in an amicus brief for which I was counsel of record. The brief was a collaborative project of Cornell Law School's terrific First Amendment clinic (on whose advisory board I sit). Still, the clinic has quite a few more irons in the FOIA (yuck yuck). So we live to fight another day.

Meanwhile, today I want to say a few words about another decision handed down last week. In Knick v. Township of Scott, the Court held that a plaintiff whose property is taken by the government may file an immediate lawsuit in federal court alleging a violation of the Fifth Amendment's Takings Clause (made applicable to state and local action by the Fourteenth Amendment), rather than having to seek a remedy in state court first (via a so-called reverse condemnation action or its equivalent). The Court overruled an earlier decision to the contrary and split 5-4 on ideological lines. As I shall explain, the actual holding of the case may not be very important, but what it reveals is.

Writing for the majority, Chief Justice Roberts says that government is obligated to pay just compensation contemporaneously with the expropriation. He provides an arresting analogy:
A later payment of compensation may remedy the constitutional violation that occurred at the time of the taking, but that does not mean the violation never took place. The violation is the only reason compensation was owed in the first place. A bank robber might give the loot back, but he still robbed the bank.
That makes sense. Or so one might think if one were unfamiliar with the Court's longstanding precedent. As Justice Kagan shows in her dissent, the prior rule--under which a Taking did not occur so long as the government provided a fair procedure for obtaining just compensation--has deep roots.

But even if we ignore the precedent, the majority's approach only really works as applied to obvious takings. Suppose government agents offer to pay Janice  $250,000 for her house, so they can use the land as part of a military base. She declines the offer, so the government takes the property. A taking has clearly occurred, entitling Janice to the fair market value now. The government should hand over a check simultaneously with taking the property. Failure to do so violates the Takings Clause, even if there is a procedure by which she can get paid--just as the Chief says.

However, the robber-giving-back-the-loot analogy doesn't work nearly as well for alleged regulatory takings. If instead of actually occupying her land, the government adopts a regulation that, Janice contends, either deprives her of all economically viable use of the land or (in Holmes's famously unhelpful phrase) "goes too far," there may be a contest over whether a Taking has occurred. And because, as the dissenters note, an enormous variety of regulations can be challenged as Takings--even if many of the challenges do not ultimately succeed--the Court's go-to-federal-court-immediately rule opens state and local governments up to a great many possible lawsuits.

That said, Knick might not actually lead to a flood of litigation, because its principal effect could simply be to shift some litigation from state to federal court. Justice Kagan is right to regard that shift as undesirable. It could crowd federal courts with cases that are better suited to state court, given the prevalence of state law issues. But at least that's mostly a concern for the federal courts themselves and principles of comity, rather than for the state and government officials subject to suit.

The real problem, to my mind, is that the Chief and the other conservative justices find the robber analogy useful notwithstanding the obvious problems when one attempts to apply it to regulatory takings cases. They are untroubled by a rule of law that treats regulation as presumptively illegitimate. Seen through this lens, Knick is another piece of evidence for the proposition that the Roberts Court is pursuing an aggressive deregulatory agenda (as I discussed in point 3 of yesterday's post in connection with the conservatives' declared willingness to breathe new life into the nondelegation doctrine in the Gundy case).