‘If a Local Government Legislator or Building Permit Official Must Answer to the Takings Clause, Then Why Not the Judicial Branch?’

Abstract

The Plurality Opinion by Justice Scalia (joined by Chief Justice Roberts and Justices Thomas and Alito) states that the Takings Clause is “not addressed” to the action of a specific branch or branches of government. It is concerned simply with the act, not with the governmental actor, and strongly asserts that there is “no textual justification” for saying that the scope of a state’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation. The Plurality Opinion also cites “common sense” as leading to the same conclusion because it would be absurd to allow a state to “do by judicial decree what the Takings Clause forbids it to do by legislative fiat.” It cites the Court’s precedents as not supporting the proposition that “takings effected by the judicial branch are entitled to special treatment.”