In the recently decided case of Arkansas Game & Fish Commission v. United States, the federal government took the position that a series of destructive floods induced by the U.S. Army Corps of Engineers should be automatically exempt from the Fifth Amendment’s requirement that just compensation be paid when property is taken for a public use because the flooding in question was temporary in duration, not permanent. That fishy argument failed to command even a single vote on the Court, which ruled 8-0 on Tuesday (with Justice Elena Kagan recused) against granting “a blanket temporary-flooding exception to our Takings Clause jurisprudence.”
Did anyone think the federal government had a decent case? The editorial board of The New York Times did. In an unsigned editorial published a few days after the October oral argument, the Times urged the Court to whittle away at the Takings Clause. “If [the Army Corps of Engineers] and other agencies that manage natural resources for the government had to worry about liability for takings for every management decision,” the paper declared, “they would lose the flexibility they need.”
It’s not everyday when The New York Times butts heads with liberal Justice Ruth Bader Ginsburg, but Tuesday was such a day. Here is Ginsburg’s opinion for the Court rejecting the “flexibility” argument made by the federal government and its friends at the Times:
Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction.