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. The Takings Clause states: “[N]or shall private property be taken for public use, without just compensation.” 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.
Finding the line between government interferences with property that are takings and those that are not has occupied the Supreme Court in most of the 100-plus decisions compiled here. The Supreme Court’s decisions in these takings actions reach back to 1870, and are divided in this report into three periods.
The modern period, 1978 to the present, has seen the Court settle into a taxonomy of four fundamental types of takings—total regulatory takings, partial regulatory takings, physical takings, and exaction takings. The Court in this period also has sought to develop criteria for these four types, and to set out ripeness standards and clarify the required remedy. In the preceding period, 1922 to 1978, the Court first announced the regulatory taking concept—the notion 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, continuing rather its earlier focus on appropriations and physical occupations. In the earliest period of takings law, 1870 to 1922, the Court saw the Takings Clause as protecting property owners only from appropriations and physical invasions, two forms of government interference with property seen by the Court as most functionally similar to an outright condemnation of property. During this infancy of takings law, regulatory restrictions were tested under other, non-takings theories, such as whether they were within a state’s police power, and were generally upheld.
The three takings cases accepted by the Supreme Court during its current (2012-2013) term attest to the Court’s continuing interest in the takings issue.
Date of Report: November 26, 2013
Number of Pages: 22
Order Number: 97-122
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