Basic themes for regulatory takings litigation.

• Author: Byrne, J. Peter

1. INTRODUCTION

   In my view, the Takings Clause(1) ought not apply to regulations of resource use at all, but only to physical or legal appropriations.(2) Serious unfairness in the administration of land use and environmental laws may raise constitutional concerns that can and should be addressed under the Equal Protection Clause(3) or substantive due process analysis.(4) Of course, no litigator would directly advocate such a position while defending a particular land use regulation. But many of the arguments against any regulatory takings doctrine also support specific claims for a narrow reading of applicability of the doctrine to particular facts.

   Thematic coherence is important in any litigation, but it is essential in regulatory takings litigation, where the law to be applied lacks doctrinal clarity and consistency. Because the Takings Clause contains no clear test or determinate prohibition directed at regulations, argument about its application must involve rhetorical appropriation of broad constitutional standards and jurisprudential meanings. Generally, property rights advocates have had the better of struggles to link the reach of the Takings Clause to attractive norms, invoking images of lonely, weak individuals seeking liberty and enjoyment of the fruits of their honest labor.(5) Too often government lawyers woodenly defend regulations either as not hurting an owner too much or as not quite fitting within a doctrinal category. In fact, a challenged regulation will often appropriately serve important public purposes that need to be intelligently explained to the court. That is the core of any constitutional defense. In close or mixed cases, however, the litigation themes outlined in this Article may help persuade a doubtful judge that the government deserves the benefit of the doubt.

   Moreover, consciousness of these themes will help provide coherence to the legal positions taken by a government entity that repeatedly defends against regulatory takings claims. The defense of takings claims should be pursued, to the extent possible, with a view toward narrowing the scope of the regulatory takings doctrine. Consistent with the specific litigation goals of a particular case, advocates should consistently make arguments that tend to move the law in the direction of this goal whenever possible. On the other hand, arguments that represent a diversion from the ultimate goal of narrowing the scope of the regulatory takings doctrine--or that actually detract from achieving this goal--should be avoided if possible.

   This brief Article summarizes arguments that can be made in regulatory takings cases to advocate a narrow reading of the Takings Clause. Fortunately, many of this Article's arguments may appeal to conservative judges who might instinctively be sympathetic to strong property rights positions. The arguments highlight jurisprudential tensions between activist interpretations of the Takings Clause and traditional themes of conservative constitutional interpretation. In other words, the arguments point out the contradiction between expansive interpretations of the Takings Clause and traditional notions of judicial restraint and states' rights.

2. LITIGATION THEMES

   1. The Narrow Language of the Takings Clause

      The language of the Takings Clause shows that the clause applies only to physical appropriations and their functional equivalents; it does not support the view that the clause applies to regulations that limit permissible uses and diminish the value of property. The key word is "take." A taking is an actual physical appropriation. Simple regulation does not take.

      To borrow Professor Treanor's helpful metaphor, if a parent tells her daughter that she cannot play with her ball in the house, she has lost something of value, i.e., the right to play with the ball in the house. The parent has regulated what her daughter can do with the ball, but she has not "taken" it. The daughter is still free to play with it outside. The parent only "takes" her daughter's ball when she physically seizes it.(6)

      The point to be made in takings litigation is that the regulatory reach of the clause should be narrowly construed because it exceeds the scope of the Constitution's language. The regulatory takings doctrine is a creative judicial metaphor that treats a regulation as if it were a seizure. To maintain a vital link to the constitutional text, the application of the doctrine to regulations should be reserved for severe constraints on an owner's use of a resource that approach or resemble those that would result from a physical deprivation.

   2. The Original Understanding of the Takings Clause

      Legal scholars of all shades of political opinion recognize that the available evidence about the original understanding of the Takings Clause shows that the clause was intended to apply only to direct physical appropriations.(7) The leading recent scholarship on this point includes the works of Professors John F. Hart and William Michael Treanor.(8) Noted conservatives, including former Solicitor General Charles Fried and former judge Robert Bork, have explicitly acknowledged that the broad regulatory takings argument has no foundation in the original understanding of the Takings Clause.(9)

      Arguments for a reading of the Takings Clause that conforms to the original understanding represent a thoroughly conservative approach to constitutional interpretation. Thus, the original understanding argument is not only firmly rooted in constitutional history, it also contradicts the conventional view that a broad reading of the Takings Clause...