The politics of takings: choosing the appropriate decisionmaker.

AuthorButler, Lynda L.
PositionDefining Takings: Private Property and the Future of Government Regulation

Deciding who should define takings, especially regulatory takings,(1) is a daunting task. It is daunting because years of effort by all three branches of the federal government have failed to produce an effective solution. For very different reasons, each branch has failed to develop a sound approach to regulatory takings.(2) It is also daunting because the definition of a regulatory taking is so fundamentally important to the future of our economic, legal, political, and natural systems(3) that it may require the wisdom of Solomon to resolve.

Which branch, then, should define when a taking occurs because of regulatory conduct? The response will depend on the values and purposes that an individual attaches to the Takings Clause(4) and on the expectations that an individual has for the takings decision-making process.(5) The response of Professor Peter Byrne and others is that the regulatory takings doctrine raises utilitarian issues best handled by the democratically accountable legislative branch.(6) My response is that the branch best able to provide principled decision making should handle the regulatory takings problem. As used in this Article, the phrase "principled decision making" refers to decision making that is principled in the sense of process, and not necessarily in the sense of providing a unified or coherent set of substantive principles--that is, decision making that is objective and neutral and not controlled by the personal interests or beliefs of the decisionmaker or the parties directly affected by the decision.(7)

What explains the inherently different approaches to solving the regulatory takings problem? Perhaps fundamentally different expectations about what a solution can or should accomplish explain the differences. In any event, my suggestion to focus on the branch best able to engage in principled decision making results in part from previous unsuccessful attempts by all three branches of the federal government to address the regulatory takings problem.(8) Those unsuccessful attempts have convinced me that the problem is far too complex to yield a single substantive solution or a coherent set of principles. I am therefore much more willing to focus on the takings decision-making process and on a branch's capacity for principled decision making in determining which branch should have primary responsibility for defining regulatory takings.

This Article focuses on the problem of choosing the appropriate decisionmaker for regulatory takings issues. To support my conclusion that the judicial branch should be the primary takings decisionmaker, Part I of the Article reiterates the constitutional dimensions of the regulatory takings problem. In addition to discussing why government action that excessively regulates property poses a constitutional takings issue even though the action is otherwise a valid exercise of the police power, Part I examines the potential for political process unfairness to property owners, a central concern of the Takings Clause.(9) Then, in Part II, the Article addresses each branch's role in defining regulatory takings--a topic of much debate in this Symposium issue.(10) This Part first makes the case for judicial branch resolution of regulatory takings issues and then examines the case against choosing the legislative or executive branch as the primary regulatory takings decisionmaker.(11) Each discussion explains why the judiciary is the branch best able to engage in principled decision making and to avoid the politics of takings. Finally, Part III summarizes the conclusions of the Article and introduces the main themes of this Symposium issue.

  1. THE CONSTITUTIONAL DIMENSION OF THE REGULATORY TAKINGS PROBLEM

    In his 1995 article in Ecology Law Quarterly, Professor Peter Byrne argued that the regulatory takings doctrine should be abolished and that the legislative process should instead be used to resolve the essentially utilitarian issues raised by the doctrine.(12) As support for this conclusion, he described the morass into which the doctrine had taken the courts,(13) the lack of textual, precedental, or utilitarian support for the doctrine,(14) the failure of the doctrine to promote economic efficiency,(15) and the illegitimate and unwise use of the doctrine to curb environmental protection efforts.(16) He also asserted that federal court enforcement of the doctrine against the states "upsets appropriate notions of federalism"(17) because it impairs the states' "authority to adjust the limits of property interests created by the states themselves ...."(18) At the very least, this impairment suggests the "need for a stronger justification for the exercise of national power."(19) Professor Byrne's suggested legislative solution basically would provide a developer with a property right in development plans upon the issuance of a crucial permit.(20) To "allow government to respond to changes in circumstances and overall goals," he proposed that a reasonable time limit be imposed on the permit and therefore on the property right.(21) The "thrust" of his statutory solution "would be to give property status to the approved development plan at a clear point in the process, so that non-excepted subsequent prohibitions on completion would require payment of compensation."(22)

    To accept some of Professor Byrne's arguments in support of his solution would require denying the constitutional dimension of the regulatory takings problem. Original understandings of the Takings Clause admittedly did not consider police power regulation to pose a serious takings problem.(23) Courts focused on whether the challenged police power action involved a physical appropriation and generally were not concerned about the regulation of property, not even when the regulation had a significant economic impact.(24) Despite those original understandings, though, the drafters of the Takings Clause and the early courts that interpreted the clause surely could not have anticipated the degree of regulation that exists currently, especially in the environmental area. Because clean air, clean water, trees, fisheries, wildfowl, and other natural resources were overwhelmingly abundant in the 1700s and 1800s, there was minimal need to understand the adverse environmental impact of land use.(25)

    Furthermore, the problem of excessive or abusive governmental regulation of property by laws that otherwise are valid exercises of the police power seems to raise precisely the type of constitutional concerns that the Takings Clause should address.(26) The concern expressed by the Court in Pennsylvania Coal Co. v. Mahon,(27) that government may go too far in regulating property,(28) is exactly the type of concern that courts existing in a modern regulatory state should consider under the Takings Clause. The Court should not, as a matter of constitutional takings doctrine, allow government to regulate property so extensively that the market value of the property is driven down to a point at which government can condemn the property at a bargain rate.(29)

    Treating such excessive regulation of property as equivalent to a physical appropriation seems to logically extend the traditional concepts of eminent domain and of property law. If government were not prevented by the Court's takings jurisprudence from adopting regulations that were valid exercises of the police power but that went too far in burdening private property, government would rarely, if ever, need to exercise its power of condemnation. It could simply over-regulate a tract of land until the market value fell to a point at which the landowner would prefer to sell the property and government was one of the few parties interested in buying the property. Such manipulation of market value to circumvent the need for condemnation would be inconsistent with the just compensation constraint imposed on government's eminent domain power.(30) The same constitutional values of fairness, distributive justice, and freedom from majoritarian exploitation that underlie physical appropriations surely exist in cases of excessive or abusive government regulation of property.(31) These values do not just involve the problem of surprise resulting when a property owner buys land with the expectation of developing it for a profit only to discover that new government regulations prevent development.(32) The values also focus on the unfairness and outrageousness of being singled out and forced to bear the costs of government action and of being subjected to disproportionately burdensome government action.(33)

    Furthermore, property law already has numerous doctrines that treat one situation as equivalent to another, despite the absence of key characteristics or even the ultimate fact, because of the importance of promoting fundamental principles or policies of property law. Under landlord/tenant law, for example, courts routinely recognize that a landlord's interference with a residential tenant's use and enjoyment of the leasehold premises can be functionally equivalent to an actual eviction.(34) When the interference is serious or substantial, the tenant may no longer be able to enjoy or use the property and thus, for all practical purposes, is evicted.(35) Additionally, under the law of gifts, courts treat delivery of the sole means of access and control of personal property as being equivalent to the actual manual transfer of the property.(36) Courts typically explain that the functions and policies of the delivery requirement are served, so long as a donor gives up dominion and control over her property.(37)

    The absence of political process unfairness to property owners similarly is not a convincing reason to conclude that the regulatory takings problem is without constitutional dimension.(38) Many property owners admittedly have significant impact on the political process.(39) That these property owners do not suffer from widespread bias within the political...

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