The U.S. Supreme Court this week published two opinions which, alongside a handful of other recent rulings, enshrines the Roberts Court as perhaps the most property-friendly bench in modern American history. Both decisions were unanimous—not the first, but still surprising in view of this minority “liberal” wing’s inapposite positions in other cases involving the Fifth Amendment’s Takings Clause. It seems, at least for the moment, that the justices have morphed into nine venerable Ron Swansons.
The surly Ur-libertarian from Parks & Recreation offers up more than a few maxims worth embracing. He believes, with some justification, that “skim milk is water lying about being milk” and insists, also with some justification, that “history began on July 4, 1776—everything that happened before then was a mistake.” To prevent a hangover, he eats a large flank steak, pan-fried in salted butter, and slips into bed donning wet socks. Most notable, however, is Ron’s commitment to the private civil sphere, colorfully admonishing government as “a greedy piglet that suckles on a taxpayer’s teat until they have sore, chapped nipples.” Thankfully, neither of this week’s opinions borrowed this verbatim, though both demonstrated a similar laudable zealousness. Both’s vociferous tone makes their unanimity that much more remarkable.
Turning to more dignified language, the Takings Clause provides: “nor shall private property be taken for public use, without just compensation.” Meaning if the government—federal, state, or local—wants your property for “public use” (the sole basis upon which government can exercise this power) it has to pay for it (typically in the ballpark of fair market value). As is often the case for the U.S. Constitution, the Clause’s high-altitude approach—to ensure applicability regardless of sociocultural and technological progress—conjure more questions than answers. Chief among these is what, exactly, does it mean to take property? Fortunately for constitutional originalists like me, the Court, as it long has, continues to hold that government can effectively “take” private property by heaping on so many regulations that a subject owner has no more use for it. It applies—since 1987 and 1994, respectively—to conditions government imposes on the issuance of land-use permits that lack an “essential nexus” with, or are “disproportionate” to, the costs that the proposed land use will likely impose on neighbors (though it should be noted that this so-called “unconstitutional conditions” doctrine lives somewhere in the liminal space between the Takings and Due Process Clauses).
Though these doctrines have been around for quite a while, governments at all levels nonetheless continue finding or inventing trivial loopholes that require courts to keep clarifying how well-worn judicial rules are to be applied in light of minor legal modifications. Cases in point. In Sheetz v. County of El Dorado, the Court held that whether a condition on a land-use permit—aka, an “exaction”—was unconstitutional does not depend on the form it assumes, be it executive (i.e., discretionary) or legislative (i.e., generally applicable law). In Devillier v. Texas, the Court likewise drew closer to the longstanding theory that the Takings Clause is self-executing and does not require a state or federal cause of action to bring claims thereunder—though deciding it “imprudent to decide that question without satisfying ourselves of the premise that there is no cause of action” (because it turns out Texas had one).
The opinions seamlessly transitioned between the historical record and modern considerations. In Sheetz, Justice Barrett struck El Dorado County’s statutory demand that Mr. Sheetz remit over $20,000 to improve public roads in exchange for a permit to build a modest home because the “passive” Clause “does not limit [itself] to a particular branch of government” and especially “does not single out legislative acts for special treatment.” Meanwhile, in Devillier, Justice Thomas in a short opinion emphasized that “[c]onstitutional rights do not typically come with a built-in cause of action . . .” Meaning individuals should be able to bring claims against the government directly under the Constitution instead of a state law. Again, Devillier did not go that far. But that the Court is even fielding such questions is promising, to say the least.
Sheetz and Devillier are just the latest in a series of this Court’s uber-friendly rulings on property rights. Crucially, in Cedar Point Nursery v. Hassid (2021), the Court (of a slightly different composition than today’s) held that private property is a fundamental right—one that precedes the Constitution. Thus, alleged violations of the right are subject to a heightened scrutiny; though Court has not definitively outlined the precise standard of review to apply to governmental claims of bona fide public use. But by properly identifying the right as “fundamental,” the government’s probative task is far more difficult for an eminent-domain action than it is for, say, professional licensing—rules that are typically subject to the “rational basis” standard under which government nearly always wins.
Doctrinal cliffhangers aside, Cedar Point, Sheetz, Devillier, and a handful of other recent cases I sadly have no space to elaborate on, demonstrate that this Court, though severely divided on some matters, are oddly kismet with respect to property rights—or at least that is its current trajectory. Whether the justices stay on this path is something of an open question, though their momentary transmogrification into nine Ron Swansons (instead of the typical five or six) is an auspicious sign.
Alki and Keep Fighting,
Sam Spiegelman