Tuesday, April 23

Taking Stock of Tahoe-Sierra

Although I have but skimmed it, here is my first impression of the Supreme Court's latest decision:

Put bluntly, it is atrocious. The distinction drawn by the majority between a temporary and a permanent takings rests on infirm ground both precedentially and historically. On its face, the language of the Fifth Amendment merely says, "nor shall private property be taken for public use, without just compensation." No distinction is made between land that is taken for five, ten, or fifty years and then given back to the owner and land that is taken permanently. Furthermore, it makes no sense to say that the deprivation of the use of land for six years or 32 months (there is a dispute between the majority and the main dissent over the real length of the deprivation) is "justly" compensated by no payment whatsoever.

Even under the Court's fact-specific and byzantine takings doctrine, it is disingenuous for the majority to say that this lengthy deprivation was a temporary taking but that the taking in Lucas, which turned out to be only a two-year deprivation of use due to subsequent legal developments, was a permanent taking deserving of compensation. Experience shows that what turns out to be permanent and what turns out to be temporary is not an easy distinction for the courts to make ex ante. Common sense, therefore, suggests that all takings be compensated for the duration of the actual deprivation of use.

The majority also insists that normal procedural delays in obtaining zoning or building approval are not the sort of deprivations of use that give rise to a taking. Fair enough. But when the procedural delay in making such a regulatory decision reach two or six years, surely the failure of the government to afford the plaintiff due process within a reasonable length of time supports a policy of requiring the government to compensate him for the lost use of his land.

One final note. Justice Thomas is to be congratulated for yet another penetrating opinion in which he flays the majority with his common sense; entering his second decade on the Court, he is becoming the clear heir to the late Potter Stevens when it comes to insisting that difficult decisions be grounded on clear, unassailable logic. In his dissent, he gently mocks the assurances of the majority that "a temporary prohibition on economic use" cannot be a taking because "logically, the property will recover value as soon as the prohibition is limited." Thomas responds that "the 'logical' assurance that a 'temporary restriction . . . merely causes a diminution in value' is cold comfort to the property owners in this case or any other. After all, 'in the long run, we are all dead.' John Maynard Keynes, Monetary Reform 88 (1924)." That sound you hear is the air rushing out of the majority's opinion.