BYU Law Review


The U.S. Supreme Court distinguishes between appropriations and regulations of property rights when interpreting the Fifth Amendment’s Takings Clause. While appropriations of any kind require just compensation to survive constitutional scrutiny, whether non-appropriative laws regulating property rights require compensation is determined on an ad hoc basis, guided by concerns of fairness and justness. In Cedar Point Nursery v. Hassid, the Court reaffirmed its prior precedent establishing the physical takings doctrine, providing that an appropriation is any government action that results in a physical invasion of an owner’s real property and a taking of the owner’s right to exclude. The Court also set forth multiple exceptions to the physical takings doctrine’s scope for certain types of government invasions of property. The exceptions, however, are ill-defined, and the Court failed to reconcile its holding with its prior inconsistent decisions applying the doctrine. Thus, the boundary between appropriation and regulation remains murky, such that any heightened constitutional protection for appropriative actions may be purely illusory. Further, governments, courts, and property owners lack clear guidance as to what laws are unconstitutional in the absence of compensation.

Takings Clause scholars almost uniformly call for the elimination of the Court s physical takings doctrine. Critics of the doctrine argue that any distinction between appropriations and regulations should be eliminated, such that all government actions short of formal acts of eminent domain should be evaluated on a case by case basis, with compensation only justified where the public interest is minimal or the economic hardship on the owner is great. This approach, however, would only further weaken the protection provided by the Takings Clause.

The physical takings doctrine is unsound, but contrary to the dominant view in the scholarship, the Court's distinction between appropriations and regulations is not. The Court has long recognized that appropriations require compensation without regard to the public interest at play or fairness and justness concerns, as shown by nineteenth and early twentieth century cases overlook ed or ignored by contemporary Takings Clause scholars. Rather than defining appropriations as permanent, physical invasions, however, these cases demonstrate that an appropriation occurs when the government seeks to transfer the right to use private property to a third party or the government itself without a direct relationship to the owner s ongoing use of the property. Regulation, by contrast, involves the government controlling or restricting an owner s use of property. Redefining the boundary consistent with this historical understanding would bring much needed doctrinal clarity to takings jurisprudence and advance important normative considerations. Requiring compensation for all properly defined appropriative acts furthers multiple values including multiple values including autonomy and political freedom and accounts for the interests of owners and non owners alike.


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