Regulatory Takings


The "takings," or "property rights," agenda draws its rhetorical inspiration — though not necessarily direct support — from the Takings Clause of the Fifth Amendment to the U.S. Constitution. The Takings Clause provides: "nor shall private property be taken for public use, without just compensation."

The available historical evidence demonstrates that the drafters of the Bill of Rights included a takings clause to address outright physical appropriations of private property — such as government expropriation of private land for a road or some other public facility — but not to address regulation of the uses of property. However, the U.S. Supreme Court has ruled that certain regulations can go "too far" and therefore result in takings as well. In general, the Court has ruled that regulation only results in a taking when it eliminates all or substantially all of the property's value.

The narrow constitutional protection the takings clause provides for private property interests hardly indicates any lack of respect for private property rights. Instead, it demonstrates the drafters' understanding that individual property rights must be defined in relation to the private property rights of all other citizens. It also reflects the conclusion that the definition of private property rights — and, as appropriate, the redefinition of private property rights over time — must generally be left to democratically elected representatives of the people rather than to the judiciary.

Advocates of the modern "takings" agenda go beyond the original understanding of the taking clause and Supreme Court precedent to argue that regulations that limit the potential value of land and other property frequently result in takings. According to this view, takings occur under a wide variety of local, state and federal rules — from zoning regulations, to historic landmark laws, to wetlands permitting requirements, to habitat protection measures, to cite just a few examples.

Philosophical opponents of government regulation, and interest groups which stand to benefit from this agenda, have seized upon the takings issue as a political tool for seeking to confine the sphere of democratic decision-making. If the public had to pay every time a government official enforced some rule or regulation, there would obviously be far less regulation; at the same time, however, other property owners and other citizens protected by environmental protection standards or other laws would suffer economic, environmental, and other harms.

In the courts, advocates of an expanded reading of the taking clause are filing lawsuits in federal and state courts using it to challenge local, state, and federal laws.  In the late 1980s and 1990s, the Supreme Court handed down a series of decisions suggesting that the Court was prepared to adopt an expansive new interpretation of the Takings Clause. Supreme Court decisions handed down over the last decade, however, demonstrate that, at least for the time being, the Court is determined to maintain a balanced view of regulatory takings that is quite deferential to the policy choices made by the political branches of government.

In Congress, "takings" legislation was a central feature of the "Contract with America" in the 104th Congress and some version of takings legislation has been considered, but not adopted, in virtually every subsequent Congress. Many state legislatures have also considered takings legislation, and about half the states have adopted some form of legislation on the subject. The adoption of Measure 37 by the voters of Oregon in November 2004 has created a new wave of interest in takings measures at the state level.

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