Supreme Court

Supreme Court Rejects Opportunity to Reconsider Penn Central

Justice Thomas dissented from denial of certiorari by himself to urge a revamp of Takings Clause jurisprudence.


Today the Supreme Court denied a petition for certiorari in Bridge Aina Le'a v. Hawaii Land Use Commission. This case invited the Court to reconsider the Penn Central balancing test which is applied to more regulatory takings claims under the Fifth Amendment's Takings Clause. Alas, this was an invitation the Court declined to accept.

Justice Thomas issued a brief solo opinion dissenting from the denial of certiorari explaining why, in his view, the time is right to reconsider Penn Central. Of note, he cites a range of scholarship, from scholars across the ideological spectrum, expressing dissatisfaction with the Penn Central factors. I reproduce his dissent below.

I recently explained that "it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment." Murr v. Wisconsin, 582 U. S. ___, ___ (2017) (dissenting opinion) (slip op., at 1).

Our current regulatory takings jurisprudence leaves much to be desired. A regulation effects a taking, we have said, whenever it "goes too far." Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393, 415 (1922). This occurs categorically whenever a regulation requires a physical intrusion, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), or leaves land "without economically beneficial or productive options for its use," Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1018 (1992). But such cases are exceedingly rare. See, e.g., Brown & Merriam, On the Twenty-Fifth Anniversary of Lucas: Making or Breaking the Takings Claim, 102 Iowa L. Rev. 1847, 1849–1850 (2017) (noting that in more than 1,700 cases over a 25-year period, there were only 27 successful takings claims under Lucas—a success rate of just 1.6%). For all other regulatory takings claims, the Court has "generally eschewed any set formula for determining how far is too far," requiring lower courts instead "to engage in essentially ad hoc, factual inquiries." Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 326 (2002) (internal quotation marks omitted). Factors might include (1) "[t]he economic impact of the regulation on the claimant," (2) "the extent to which the regulation has interfered with distinct investment-backed expectations," and (3) "the character of the governmental action." Penn Central Transp. Co. v. New York City, 438 U. S. 104, 124 (1978); see also Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 538–539 (2005). But courts must also "'weig[h] . . . all the relevant circumstances.'" Tahoe-Sierra Pres. Council, 535 U. S., at 322. As one might imagine, nobody—not States, not property owners, not courts, nor juries—has any idea how to apply this standardless standard.

This case illustrates the point. After an 8-day trial and with the benefit of jury instructions endorsed by both parties, the jury found a taking. The District Court, in turn, concluded that there was an adequate factual basis for this verdict. But the Ninth Circuit on appeal reweighed and reevaluated the same facts under the same legal tests to conclude that no reasonable jury could have found a taking. These starkly different outcomes based on the application of the same law indicate that we have still not provided courts with a "workable standard." Pomeroy, Penn Central After 35 Years: A Three Part Balancing Test or One Strike Rule? 22 Fed. Cir. B. J. 677, 678 (2013). The current doctrine is "so vague and indeterminate that it invites unprincipled, subjective decision making" dependent upon the decisionmaker. Echeverria, Is the Penn Central Three-Factor Test Ready for History's Dustbin? 52 Land Use L. & Zon. Dig. 3, 7 (2000); see also Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118 Pa. St. L. Rev. 601, 602 (2014) ("[T]he doctrine has become a compilation of moving parts that are neither individually coherent nor collectively compatible"). A know-it-when-you-see-it test is no good if one court sees it and another does not.

Next year will mark a "century since Mahon," during which this "Court for the most part has refrained from" providing "definitive rules." Murr, 582 U. S., at ___ (slip op., at 7). It is time to give more than just "some, but not too specific, guidance." Palazzolo v. Rhode Island, 533 U. S. 606, 617 (2001). If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs. I respectfully dissent.

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  1. The Court won’t take regulatory takings seriously, because they’ve become just too common. That’s the bottom line. If they were rare, the Court would absolutely take this on, but they positively hate making ruling that have major impact.

    1. But I thought that’s why Trump hired these new people.

      1. It’s related to the Overton window: Recognizing regulatory takings is outside it, it is a practical impossibility to find judicial candidates who would change that.

        Perhaps Trump would like to have found such candidates, but where would he have gone looking for them?

        The Federalist society served up non-awful candidates, at least, but no fire breathing conservatives.

    2. John Roberts is such an unbelievably terrible Justice.

  2. What is the original view of regulatory takings? It seems to me that its a more modern concept … which is fine, I’m not a pure originalist, and it does seem to fit from a rights perspective that if you destroy someone’s lands or business due to regulations should pay for it under the takings clause.

    Like I would imagine an Alito esque pragmatism would effect good solutions here, at least in my view.

    But thats a minority on the court. How is Thomas expected to rule?

    Also, I have a feeling that the certain members of the court have become too reflexive in defending precedent. Even when it makes no sense and everyone is saying it should be revisited. I can’t recall another court that spent this much time defending stupid precedents.

    Like to the liberals, every tweak is now a road to overturning Roe, and so even when it comes to some stupid non-originalist pragmatic rule make 30 years ago that never made sense then and doesn’t now in a completely different context … that should be defended! For reasons!

    And I’m not limiting this to the liberals, but thats an example for them.

    In my view, you cannot be a pragmatist and a defender of precedent at the same time, because pragmatism demands you adjust your rulings to the times. Without straying too far. But the current consensus is that sweeping social change forced on everyone is completely fine but a minor rule … no thats a bridge too far. It makes no sense.

    1. Regulatory takings could hardly NOT be a new concept; You need a serious regulatory state before regulatory takings could be a thing.

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