June 17, 2010

Judicial takings in Stop The Beach Renourishment

By Judicial takings in Stop The Beach Renourishment

Author: Timothy Sandefur

The Supreme Court today decided Stop The Beach Renourishment v. Florida Dept. of Environmental Regulation, a crucial case on the question of whether courts can retroactively erase property rights in the guise of legal interpretation without having to compensate property owners. Today’s decision gives hope to millions of American property owners whose right to their homes, businesses, and other property is often at the mercy of judges who are willing to totally rewrite the law to expand government at their expense.

The Fifth Amendment requires government to compensate people for taking their property away, and this also applies if the government enacts a rule that forbids people from using their property in any way. But according to a precedent called Lucas, no compensation is required if the rule that forbids the use of property “inheres in the background principles of state law”—that is, if the reason you’re not allowed to use your land is some long-standing common law principle, like nuisance. The takings clause does not require the government to compensate you for stopping you from running a dynamite factory next to a kindergarten.

The problem is that courts sometimes try to go back and rewrite state property law in order to take property from people without compensation. Although the Supreme Court has sometimes said that that wouldn’t be allowed, the Stop The Beach Renourishment case is the first time the Court has discussed the matter at length. In today’s decision, the justices found that such a thing did not happen here—but in section II of the opinion, four of the justices went on to explain why this would not be allowed:

States effect a taking if they recharacterize as public property what was previously private property…. The Takings Clause…is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the governmental actor…. There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation. Nor does common sense recommend such a principle. It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat…. If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.

Although this is only the decision of four judges, not a majority, it is still excellent news for the rights of private property owners. Whatever one thinks about the end result of the decision, the crucial fact is that Justices Scalia, Thomas, Alito, and Roberts recognize that state courts do not have free rein to redefine private property at will. We’ll have more on this decision as we read further. In the meantime, you can read PLF’s amicus brief here (joined by our friends at the Cato Institute and the National Federation of Independent Business), as well as my National Law Journal article on the case here.

Update: Some further thoughts here.

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