Regulatory takings

Subscribe to Regulatory takings via RSS

In all of today’s excitement about the Court’s opinions in Horne v. Dep’t of Agriculture, No. 14-275, the “raisin takings” case which we posted about earlier, we almost lost sight of the other property rights decision issued by the Court, City of Los Angeles v. Patel, No.13-1175 (June 22, 2015). 

The case did not present takings, land use, or eminent domain issues, but we’ve been following along with interest nonetheless, because at stake was the right of a Los Angeles hotel owner to require the police to obtain a warrant before he allowed inspection of the hotel’s guest register. The Court’s majority said yes, hotel owners really do need the opportunity to make the police get a warrant before the police can force the hotel to open up its records.

The opinion by Justice Sotomayor and joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, didn’t talk about property…

Continue Reading Today’s Other Supreme Court Property Rights Decision

… look no further than the above report from The Daily Show.

Yeah, it’s satire and does at times make light of a serious case, but the USDA was trying to defend a regulation that branded the Hornes as “raisin outlaws,” going so far as to hire a private security firm to “investigate the product” that the Hornes were defrauding the government of (dried fruit).

Top off “the world’s most outdated law” with the Ninth Circuit’s ridiculous avoidance after the Supreme Court’s earlier remand (the Takings Clause does not apply with equal force to personal property as it does to land) , and you have the recipe for success and an 8-1 ruling. 

Related articles
Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All Agree On

…
Continue Reading Here’s Why The Supreme Court Held The Raisin Marketing Order Was Unconstitutional…

Update: here’s more Horne talk, in addition to our own initial thoughts in the above video and this post (“Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All Agree On Remedy“):

…
Continue Reading Raisin Round-Up

Here’s the podcast of our recent talk to the American Bar Association’s Section of State and Local Government Law about the (then) upcoming decision in Horne v. Dep’t of Agriculture, No. 14-275. Transcript here, if you’d prefer to read it.

This is a preview of the decision. But since we made some predictions — several of which bore fruit in today’s opinions — we thought we’d post it while we digest the Court’s opinions. 

As you may know, the Court today issued its opinions, with eight justices concluding that the raisin marketing order is a physical taking of property, rejecting the Ninth Circuit’s holding that the physical takings rules do not apply when personal property is involved.

We’ll have more analysis shortly, including a round-up of how other commentators view the case. Stay tuned. 

Related articles
Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All

…
Continue Reading Podcast: Leviathan Shrugged? The Supreme Court’s Raisin Takings Case

As we predicted, the Supreme Court today held that personal property — here, raisins — is property protected from uncompensated acquisition, and that the USDA’s New Deal regulations pursuant to which the Department fined the Hornes for not turning over to the government a massive percentage of their yearly crop without compensation, is a physical taking under Loretto. Horne v. Dep’t of Agriculture, No. 14-275 (June 22, 2015). 

Eight justices rejected the Ninth Circuit’s weird ruling that the regulations did not work a taking because raisins are personal property and not land, holding that “[t]he reserve requirement is a clear physical taking. Actual raisins are transferred from the growers to the Government.” Slip op. at 8. The Court cited [the] Magna Carta, noting it protected certain crops from appropriation:

The Takings Clause provides: “[N]or shall private property be taken for public use, without just compensation.” U. S.

Continue Reading Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All Agree On Remedy

We’ve already weighed in on how the Court of Federal Claims’ decision holding that the government’s takeover of AIG was an illegal exaction, but that it wasn’t a taking. But here are the thoughts of others:

  • Lawprof Ilya Somin: “Court rules that federal takeover of AIG was an “illegal exaction,” but not a taking” (“As Judge Wheeler notes, the rule that illegal exactions cannot qualify as takings is based on longstanding precedent. But I am nonetheless skeptical of its validity. It seems to me that a taking occurs any time the government seizes private property, regardless of whether the government’s action was otherwise properly authorized or not. just as unauthorized government action can violate other constitutional rights, such as those protected by the First Amendment or the Fourth Amendment, so too it can violate the Takings Clause of the Fifth Amendment. Nothing inherent in the logic of either

…
Continue Reading AIG/Starr Round-Up

You remember that Ingrid Bergman and Charles Boyer classic “Gaslight,’ in which Bergman’s character is driven by her manipulative husband to doubt her own grip on reality? It gave rise to the term “gaslighting,” which, according to Wikipedia, is “a form of mental abuse in which information is twisted or spun, selectively omitted to favor the abuser, or false information is presented with the intent of making victims doubt their own memory, perception, and sanity.”

Well, yesterday’s New York Times report about the verdict in the AIG bailout takings case, “In A.I.G. Case, Surprise Ruling That Could End All Bailouts,” for a moment had us believing we were being gaslighted, because the Court of Federal Claims had issued a zero verdict for the plaintiffs in their takings case against the federal government, even though the court ruled the government wrongly conditioned…

Continue Reading Is The NYT Gaslighting Us? In What Alternate Reality Is The CFC’s Zero Just Comp Award A Victory?

This just crossed our desk in a case we’ve been following (link includes the numerous merits and amicus briefs filed in the case), the California Supreme Court’s opinion, authored by the Chief Justice in California Building Industry Ass’n v. City of San Jose, No. S212072 (June 15, 2015). 

The bottom line is the court agreed that rational basis review is the applicable standard:

As noted at the outset of this opinion, for many decades California statutes and judicial decisions have recognized the critical need for more affordable housing in this state. Over the years, a variety of means have been advanced and undertaken to address this challenging need. We emphasize that the legal question before our court in this case is not the wisdom or efficacy of the particular tool or method that the City of San Jose has adopted, but simply whether, as the Court of Appeal held…

Continue Reading Cal Supreme Court: Affordable Housing Exaction Subject Only To “Aliens Might Have Done It” Rational Basis Review

The Court of Federal Claims has issued its Opinion and Order in the AIG takings case, which we have been following. This is the case brought by “uberlawyer” David Boies. Background on the case, here, including pleadings, and audio of a talk we gave about the case to the ABA. At the early stages of this case, we characterized any claim for $25 billion, even when the plaintiff is represented by a top-shelf guy, as “audacious.”  

Bottom line: the feds treated AIG badly, very badly. But the measure of liability in a takings case isn’t based on bad treatment generally, but on bad treatment economically. And in that arena, “twenty percent of something [is] better than 100 percent of nothing.” 

We’ll have more after we’ve had a chance to review the 75-page single-spaced opinion, so complex it needed to have a dramatis personae appended (pages…

Continue Reading Audacity Ain’t Enough For The CFC: Gov’t Behaved Badly, But AIG Bailout No Taking Because No Damage

Pic_shot_1429716535697

            “It’s Frank’s world, we just live in it.”

                      – attributed to Dean Martin, about Frank Sinatra

A narrowly drawn opinion from the Supreme Court in Horne v. Dep’t of Agriculture, No. 14-275, argued in April and to be decided by the Court sometime before the Term ends this month, could attract more than the needed five Justices to form a bare majority, and the initial reports from the arguments agree that the Hornes’ takings argument appeared to gain traction with at least a couple of Justices from the Court’s left bloc. Combined with the property-friendly Justices and Justice Kennedy (who appeared to view the government’s arguments with great skepticism), they could put the Hornes well over the top. 

There may be much more at stake, however, if any part of the government’s…

Continue Reading Leviathan Shrugged: Oral Arguments In Horne Reveals The Taking, But Remedy Still Open