Legislative Expansion of Fifth Amendment "Takings"? A Discussion of the Regulatory Takings Law and Proposed Compensation Legislation

Abstract

I. INTRODUCTION Until now, Congress has been content to let the judiciary draw the line takings by deciding when the government must pay compensation to private property owners. However, some members of the 104th Congress proposed new legislation which would significantly change the current federal approach to regulatory takings.(1) These legislative proposals sought to replace much of the case law interpreting the Fifth Amendment Takings Clause. Despite judicial decisions favoring private property owners in the last few years, many in Congress believe that a clear standard regulatory takings is needed -- a standard which will better protect private property rights in the face of government regulation by reducing the amount of property value diminution required before the government must compensate private property owners. These members believe expanded protection of property rights is consistent with the intentions behind the Fifth Amendment Takings Clause. At the heart of the conflict is the tension between individual rights and the interests of the public, or, as some would say, the will of the majority. There are no easy answers to this timeless dilemma. These recent legislative proposals reflect a general hostility toward government regulations, especially those designed to protect the environment and natural resources. Opponents of the proposals are concerned that the proposals would, if enacted, create a cost deterrent to needed regulations.(2) Proponents argue that needed environmental regulations would still be enforced, but would no longer be on the backs of particular individuals. The government--we the people--should bear the costs when society as a whole benefits from the use of private land.(3) Proponents also argue that the costs would not be prohibitive if government agencies act efficiently.(4) By inference, acting efficiently would mean foregoing regulations necessary for the protection of public welfare and safety. The only other option under the proposed legislation would be to compensate landowners, because the proposals make compensation mandatory for regulations which affect property values even minimally. However, both the House and the Senate proposals found it unnecessary to allocate additional funds for landowner compensation required by the proposals. Instead, the money must come from an agency's existing budget. This forces government agencies to decide between bearing the expense of certain regulations or foregoing their promulgation altogether. The view that government regulation is overburdensome, and interferes with the landowner's ability to prosper is a familiar theme. This theme to some extent finds its roots in the libertarian ideology which advocates the limited role of government. In turn, the roots of the libertarian ideology may be found to some extent in the classical philosophy of property espoused by John Locke in the late 17th century.(5) Locke contended that property rights existed before government and therefore government's role is limited to that of protector of preexisting individual rights which are inherent in man.(6) House of Representatives 925 and Senate 605, both of the 104th Congress, reflect Locke's philosophy of property and, in turn, support a more protective and expansive view of individual property rights. The legislation adopts only the most libertarian concepts from current case law and fails to acknowledge the principles developed to address the necessary balance between public interests and private property rights. While proponents of this legislation seem to believe the libertarian ideology as stated by Locke was the inspiration behind the Fifth Amendment, contrary arguments exist. The proposals suggest an overly broad and ineffective solution to a problem which requires a balancing of the public interest, including protection of the environment, in conjunction with the protection of private property rights. …