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The Missing Pieces of the Debate Over Federal Property Rights Legislation, 27 Hastings Const

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The Missing Pieces of the Debate Over Federal Property Rights Legislation, 27 Hastings Const Hastings Constitutional Law Quarterly Volume 27 Article 1 Number 1 Fall 1999 1-1-1999 The iM ssing Pieces of the Debate over Federal Property Rights Legislation Max Kidalov Richard H. Seamon Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Max Kidalov and Richard H. Seamon, The Missing Pieces of the Debate over Federal Property Rights Legislation, 27 Hastings Const. L.Q. 1 (1999). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol27/iss1/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. ARTICLES The Missing Pieces of the Debate Over Federal Property Rights Legislation by MAx KIDALov* AND RicHARD H. SEAMON** I. Introduction The 105t" Congress came very close to passing property-rights leg- islation that reflected a "new breed" of federal property-rights pro- posals.' Property-rights bills in earlier Congresses would have changed the substance of the Just Compensation Clause by making it easier to prove that government action had "taken" private property.2 In contrast, last year's proposed legislation ostensibly changed, not the substance of takings law, but the process for asserting takings claims in federal court. Opponents of these process-oriented takings bills as- serted, however, that the bills did change the substance of takings law, and for that reason were unconstitutional. The debate over the consti- tutionality of the bills has continuing importance in the 106th Con- gress, where new process-oriented takings bills have been introduced.3 The debate has broader importance as well, for it raises fundamental, unsettled questions about the power of the federal courts and Con- * Clerk to the Honorable Loren A. Smith, Chief Judge, United States Court of Fed- eral Claims; J.D., University of South Carolina. Nothing in this article should be construed as expressing the views of the Court of Federal Claims or as an attempt to advance or hinder the passage of any legislation before the Congress. ** Assistant Professor of Law, University of South Carolina; J.D., Duke University. We thank Michael M. Berger, Steven J. Eagle, John D. Echeverria, Gideon Kanner, Daniel R. Mandelker, Thomas E. Roberts, and Gregory M. Stein for their helpful comments on drafts of this article. 1. S. REP. NO. 105-242, at 37 (1998); Robert Meltz, Congressional Research Service, "PropertyRights" Bills Take a Process Approach: H.R. 992 and H.R. 1534, No. 97-877A, Summary [hereinafter cited as "CRS Report"]; see also infra notes 80-96 and accompany- ing text (discussing proposed legislation). 2. U.S. CONsT. amend. V ("Nor shall private property be taken for public use with- out just compensation."). 3. S. 1028, 106th Cong. (1999); H.R. 2372, 106' Cong. (1999). HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 27:1 gress to enforce the Just Compensation Clause against state and local governments. Unfortunately, the legislative debate so far has not ade- quately explored those questions. This article attempts to provide the missing pieces. The process-oriented takings bills that are the subject of this arti- cle respond to a line of U.S. Supreme Court decisions, the best-known of which is Williamson County Reg'l Planning Comm'n v. Hamilton Bank.4 Those decisions all involved suits in federal courts against lo- cal land-use agencies in which a land owner asserted a "regulatory takings" claim-i.e., a claim that the local agency had "taken" the owner's land by severely restricting the owner's use of it. The Court in the Williamson line of cases developed two "ripeness" requirements that a land owner must meet before bringing a regulatory taking claim against a local agency in federal court. First, the owner must get a "final decision" from the local agency on what land uses are permissi- ble. Second, the owner must exhaust all available and adequate state procedures, including state-court procedures, in his or her attempt to obtain just compensation. Although there are exceptions to William- son's "final decision" and "exhaustion" requirements for ripeness, the exceptions are narrow. In a case that does not fall within an excep- tion, Williamson's ripeness requirements make the litigation of a regu- latory takings claim against a local agency in federal court an arduous and usually futile process. The main process-oriented takings bill considered in the 105th Congress sought to streamline the current process by altering William- son's ripeness requirements. Specifically, House Bill 1534 ("H.R. 1534") would have modified Williamson's "final decision" require- ment to limit the time and effort that a property owner must spend trying to resolve matters with the local agency.5 In addition, H.R. 1534 would have eliminated Williamson's "exhaustion" requirement so that a property owner could assert a regulatory taking claim against a local agency in federal court without seeking just compensation in state court. This article focuses primarily on the second feature of H.R. 1534, the provision eliminating Williamson's exhaustion require- ment, because H.R. 1534's exhaustion provision raises constitutional questions that neither Congress nor the courts have yet answered. The opponents of H.R. 1534 challenged the constitutionality of the bill's exhaustion provision on two grounds, to which the support- 4. 473 U.S. 172 (1985); see also S. REP. NO. 105-242, at 8 (1998) (describing William- son as "a key decision" on takings-ripeness doctrine); H.R. REP. NO. 105-323, at 4 (1997). 5. H.R. 1534, 105th Cong. (1997). Fall 19991 FEDERAL PROPERTY RIGHTS LEGISLATION ers had one main response. First, opponents suggested that the ex- haustion provision would violate Article III of the United States Constitution because the exhaustion requirement is mandated by Ar- ticle M's "case or controversy" requirement.6 They also argued that the exhaustion requirement would make a substantive change in the law of takings by eliminating a necessary element of a cause of action for a violation of the Just Compensation Clause. In their view, such a "substantive" change exceeded Congress' power. Supporters of H.R. 1534 countered both arguments by asserting that the exhaustion re- quirement is a "prudential" requirement, not a constitutional require- ment.7 In their view, its prudential nature made it dispensable by Congress at will. This debate over H.R. 1534's exhaustion provision raises three questions about the power of federal courts and Congress to enforce the Just Compensation Clause against local agencies. First, does Arti- cle III bar a federal court from adjudicating a takings claim against a local agency until the claimant has satisfied Williamson's exhaustion requirement? Second, even assuming that Article III does not bar such a claim, can the claimant establish a cause of action for a viola- tion of the Just Compensation Clause if the claimant has not satisfied the exhaustion requirement? Third, assuming that Article III does not bar the claim of a plaintiff who has not met the exhaustion re- quirement, but that such a plaintiff cannot state a cause of action under the Just Compensation Clause, does Congress have power to authorize the federal courts to award just compensation to the plain- tiff anyway, if the plaintiff can prove that his or her property has been taken? The supporters and opponents of H.R. 1534 explored only the first two questions, and even as to these, their analysis was incom- plete. In terms of their bottom lines, though, each side was half-right. The supporters of H.R. 1534 correctly contended that Article III does not mandate the exhaustion requirement, and Congress can therefore eliminate it without violating Article III. On the other hand, the op- ponents of H.R. 1534 correctly contended that the exhaustion require- 6. See U.S. CONST. art. HI, § 2, cl. 1 (providing that the judicial power of the United States shall extend to certain "Cases" and "Controversies"). 7. The term "prudential" is used to describe rules of justiciability that have been developed by the U.S. Supreme Court and that prevent federal courts from hearing cases that, in the Court's view, are more appropriately resolved in another forum. See Erwin Chemerinsky, Federal Jurisdiction, §2.1, at 42 (2d ed. 1994). Prudential rules are not dic- tated by the Constitution. Rather, they reflect discretionary principles of judicial "self- governance." Flast v. Cohen, 392 U.S. 83, 95 (1968); See also infra note 127. HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 27:1 ment is an element of a cause of action for a violation of the Just Compensation Clause. The elimination of that requirement would change the substance of takings law in the sense that it would create a new right to monetary relief in federal court. Neither the supporters of H.R. 1534 nor its opponents, however, explored the third question posed above: What enumerated power, if any, enabled Congress to make such a substantive change? The supporters asserted that Con- gress has the power to eliminate the exhaustion requirement because it is merely prudential. The opponents asserted that Congress lacks the power to eliminate the requirement because doing so would change the substance of takings law. These assertions mask a difficult question. If the exhaustion re- quirement were only prudential, Congress plainly could eliminate it under current precedent. The U.S. Supreme Court has indicated that Congress has plenary power to eliminate prudential rules of jus- ticiability. The Court appears to consider that authority is encom- passed within Congress' power to make rules for the federal courts.
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