Supreme Court

Supreme Court Questions Federal Government's Narrow Reading of the Takings Clause


The Takings Clause of the Fifth Amendment requires the government to pay just compensation when it takes property for a public use. Arguing before the U.S. Supreme Court yesterday morning in the case of Arkansas Game & Fish Commission v. United States, Deputy Solicitor General Edwin Kneedler advanced a theory of the Takings Clause that was so narrow in scope it appeared to visibly trouble several of the justices. "I must be slow today," Justice Sonia Sotomayor told Kneedler at one point in exasperation, because "I'm having a significant problem with your articulation of your test."

At issue in the case is whether a series of recurring floods induced by the U.S. Army Corps of Engineers that caused at least $5 million in damage to the property of the Arkansas Game & Fish Commission amounts to a taking under the Fifth Amendment. Not only was it not a taking, Kneedler told the Court, but in fact no landowner unfortunate enough to live or maintain property downstream from a government dam could ever bring a takings claim when the dam floods. "Riparian ownership carries with it certain risks and uncertainties," he told the Court. In other words: Floods happen and the government isn't responsible. "It is in the nature of living along a river," Kneedler said.

This argument seemed to be too much for several of the justices to swallow. "Your position seems to be that if it's downstream, somehow it's not the Government," observed Justice Anthony Kennedy. But that's like "the old moral of refuge that the rocket designers take," Kennedy continued. "You know, I make the rockets go up; where they come down is not my concern."

But Kneedler refused to budge, arguing that the Army Corps of Engineers "requires a broad ambit of discretion" when making flood management decisions, including the leeway to release destructive floodwaters downstream without incurring liability.

"The issue is who is going to pay" when the government builds a dam and releases flood waters as part of its management plan, declared Justice Antonin Scalia. "Should it be everybody, so that the government pays, and all of us pay through taxes, or should it be this–this particular sorry landowner who happens to lose all this trees?"

The sharpest criticism of the day came from Chief Justice John Roberts, however, who repeatedly interrogated the deputy solicitor general over his cramped reading of the Takings Clause. "If the government comes in and tells a landowner downstream that every March and April we are going to flood your property so that you can't use it," Roberts asked, "that's not a taking?" Kneedler maintained that it was not.

While it's unwise to read too much into an oral argument, it's nonetheless difficult to imagine the deputy solicitor general feeling especially positive about the icy reception his arguments received. Judging by what I observed in the courtroom yesterday, the federal government's case is on shaky ground.

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  1. Sounds like Justice Kennedy like to listen to Tom Lehrer on his free time.

  2. Waiting for the Roberts declares it’s a tax and constitutional meme in 3, 2, 1…

    1. For the LAST time – it’s NOT a….wait, now I forget.

      Is it not a TAX or is it not a PENALTY?

      I haz a confuse.

  3. I’m wondering if Roberts isn’t surprised that his little exercise in “statesmanship” and post facto redrafting of ObamaCare wasn’t well received.

  4. I almost feel sorry for the Solicitor General having to come up with a ridiculous defense of the govt’s indefensible position and make a fool of himself in public. Public defenders have to do the same thing.

    But of course, public defenders are doing a low-paid shit job out of a sense of duty, while lawyers strive for years to get the Solicitor General gig and defend the most powerful man in the world from little people.

    1. Property damage done by the government is a tax. Therefore, this is legal.

    2. Don’t worry, your boy Roberts can read it as constitutional since he can imagine a law that taxes the land owners for the exact amount of the taking.

  5. D’oh! Beaten to the Tom Lehrer reference.

  6. Personally, I’m wondering how flooding a property is public “use”.

    We libertarians like to have a narrow definition of that term, and while this is certainly for a public “purpose”, that isn’t what the Constitution says. There is a similar dynamic going on with regulatory takings, BTW: if you define “use” broadly to require compensation in some cases, you give the government a broad license to take property in other cases.

    Naturally, the Solicitor General isn’t going to argue for a narrow definition of public use to win this case, as that would hamstring other, much larger takings.

  7. “If the government comes in and tells a landowner downstream that every March and April we are going to flood your property so that you can’t use it,” Roberts asked, “that’s not a taking?” Kneedler maintained that it was not.

    The Corps of Engineers should send them a bill for that water.

  8. I’m wondering how flooding a property is public “use”.

    I suspect they’re claiming their actions “protect” other, higher-value properties upstream from damage due to flooding. They are just “temporarily” using that extra capacity downstream. It drains away after a few weeks, right?

    1. That sounds like public purpose.

      How exactly is the Corps flooding a property making it available for use by the public? If I go on that property while its flooded, am I not trespassing? What use can I, as a member of the public, make of that property?

      1. Maybe you can go boating on it?

      2. It’s a side effect of flood management and building the dam. One hopes that they aren’t just flooding people’s land for the hell of it. It’s not necessarily public use of the flooded land, but flooding the land is part of the cost for some other public use, goes the argument.

        There is an ostensible public use and public good in flood management. But it’s pretty clearly stupid to have a few people pay the entire way for this supposed collective benefit.

        1. Sure, but isn’t that all setting up a pretty broad definition of public “use” that will come in handy when the state wants to take land?

      3. The public isn’t getting the use of the property, as such, they’re getting the use of what was actually taken — a specific property right, namely the right to choose whether another human party can deliberately dump a shitton of water on your land.

    2. In that case it would be sensible for the upstream property owners to pool their resources to buy out the downstream property owners they need to flood.

  9. Chief Justice Roberts will find that flooding someone’s land is well within the government’s taxation powers and that the duration for which the land was unusable by the property owner can be deducted from taxes owed to the federal government.

  10. So Mr. Roberts can’t square the government “taking” without penalty with the citizen being forced “to give”? Fucking hacks.

  11. Wait, so FEMA buys houses out in flood areas, but the government refuses to buy out land it plans to periodically purposely flood?

  12. If I go on that property while its flooded, am I not trespassing?

    Based on my extremely limited knowledge of the law regarding water and waterways; probably not, if you are in a boat and you accessed it from the main course of the river. It’s very weird.

    I am in no way supporting the position of this idiot, I’m just speculating on the tortured logic they are using to justify their position. As much as they might like to, they thus far cannot go before the Supreme Court and say, “Because fuck you, that’s why.”

  13. All your lands are belong to us!


  14. I’d like the other justices to find clever ways to rip Roberts for his Obamacare decision in every question they ask.

  15. It was not presented in the article so i don’t know if it happened but I imagine part of the argument is that land owners are not allowed to make improvements to their property that would prevent damage from the floods. The Army Corp of engineers look down at any diversion of its waters.

    This is probably the heart of making it a takings claim.

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