Robert Meltz
Legislative Attorney
This report is a reverse chronological listing of U.S. Supreme Court decisions addressing claims that a government entity has “taken” private property, as that term is used in the Takings Clause of the Fifth Amendment. A scattering of related, substantive due process decisions is also included.
Under the Takings Clause, courts allow two very distinct types of suit. Condemnation (also “formal condemnation”) occurs when a government or private entity formally invokes its power of eminent domain by filing suit to take a specified property, upon payment to the owner of just compensation. By contrast, a taking action (also “inverse condemnation”)—our topic here—is the procedural reverse. It is a suit by a property holder against the government, claiming that government conduct has effectively taken the property notwithstanding that the government has not filed a formal condemnation suit. A typical taking action complains of severe regulation of land use, though the Takings Clause reaches all species of property: real and personal, tangible and intangible. The taking action generally demands that the government compensate the property owner, just as when government formally exercises eminent domain.
The Supreme Court’s takings decisions reach as far back as 1870, and are divided here into three periods. The modern period, from 1978 to the present, has seen the Court attempt, with uneven success, to develop workable indicia for the three types of takings (regulatory, physical, and exaction), and to develop ripeness standards. In the preceding period, 1922 to 1978, the Court first announced the regulatory taking concept—that government regulation alone, without appropriation or physical invasion of property, may be a taking if sufficiently severe. During this time, however, it proffered little by way of regulatory takings criteria. In the earliest period of takings law, 1870 to 1922, the Court saw the Takings Clause as protecting property owners only from two particularly intrusive forms of government action: outright appropriation and physical invasion. Regulatory restrictions were tested against other legal theories, such as whether they were within a state’s police power, and generally upheld.
Date of Report: November 2, 2012
Number of Pages: 22
Order Number: 97-122
Price: $29.95
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