After criticizing the Supreme Court for allowing several constitutional messes to persist on Thursday, I should congratulate the Justices (or rather 5 of them) for cleaning up a small mess on Friday in Knick v. Township of Scott. Ilya Somin, who filed an excellent amicus brief, celebrates at Volokh Conspiracy: Supreme Court Overrules Precedent that Created "Catch-22" for Property Owners Attempting to Bring Takings Cases in Federal Court. As he explains the case:
The main point at issue in Knick was whether the Court should overrule Williamson County Regional Planning Commission v. Hamilton Bank (1985). Under Williamson County, a property owner who contends that the [state or local] government has taken his property and therefore owes "just compensation" under the Fifth Amendment [ed.: actually, under the Fifth Amendment as incorporated by the Fourteenth], could not file a case in federal court until he or she first secured a "final decision" from the relevant state regulatory agency and "exhausted" all possible remedies in state court. Even then, it was still often impossible to bring a federal claim, because various procedural rules preclude federal courts from reviewing final decisions in cases that were initially brought in state court.
The majority, per Chief Justice Roberts, overruled Williamson County and held for the claimant, Knick.
This not really an originalism issue, because it doesn't turn on the original public meaning of a particular phrase. It is a textualist issue, because Williamson County wasn't based on anything in the text, but was rather something the Court made up. Williamson County said that a property owner hasn't suffered a constitutional violation until state remedies are exhausted, but that's not what the text says. As Justice Roberts explained for the majority:
Contrary to Williamson County, a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it. The Clause provides: "[N]or shall private property be taken for public use, without just compensation." It does not say: "Nor shall private property be taken for public use, without an available procedure that will result in compensation." If a local government takes private property without paying for it, that government has violated the Fifth Amendment [ed.: actually, the Fifth Amendment as incorporated by the Fourteenth; also I'm going to stop making this correction now]—just as the Takings Clause says—without regard to subsequent state court proceedings….
The Fifth Amendment right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner. That principle was confirmed in Jacobs v. United States, 290 U. S. 13 (1933), where we held that a property owner found to have a valid takings claim is entitled to compensation as if it had been "paid contemporaneously with the taking"—that is, the compensation must generally consist of the total value of the property when taken, plus interest from that time.
Or as Justice Thomas wrote in concurrence (quotations and citations omitted):
The Fifth Amendment does not merely provide a damages remedy to a property owner willing to shoulder the burden of securing compensation after the government takes property without paying for it. Instead, it makes just compensation a prerequisite to the government’s authority to take property for public use. A purported exercise of the eminent-domain power is therefore invalid unless the government pays just compensation before or at the time of its taking. If this requirement makes some regulatory programs unworkable in practice [as the United States argued as amicus] so be it—our role is to enforce the Takings Clause as written.
(It's worth noting that the decision in Knick vindicates Justice Thomas' dissent from denial of certiorari in Arrigoni Enterprises, LLC v. Durham, 136 S.Ct. 1409 (2016), in which he made these arguments and called for overruling Williamson County. One may assume the Court denied cert. in Arrigoni because there were not five votes to overrule Williamson County at that time.)
Chief Justice Roberts also makes this structural point:
The state-litigation requirement relegates the Takings Clause "to the status of a poor relation" among the provisions of the Bill of Rights. Plaintiffs asserting any other constitutional claim are guaranteed a federal forum under §1983, but the state-litigation requirement "hand[s] authority over federal takings claims to state courts." San Remo, 545 U. S., at 350 (Rehnquist, C. J., concurring in judgment). Fidelity to the Takings Clause and our cases construing it requires overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.
Finally, since the standards for overruling precedent has been in the news, I'll add that Williamson County seems to meet Justice Thomas' "demonstrably erroneous" standard. I think, despite what some commentators have said, that standard could (and perhaps should) be applied in a demanding way. But even with a demanding standard, Williamson County is pretty hard to defend on textual and structural grounds. (It got four votes in dissent, though — mostly on stare decisis grounds, and because I suspect the dissent didn't have much sympathy for the claimant).
Posted at 6:24 AM