Knick v. Township of Scott

The Fifth Amendment's Takings Clause prohibits the government from "tak[ing]" private property "without just compensation." The Court correctly interprets this text by holding that a violation of this Clause occurs as soon as the government takes property without paying for it.

The United States, by contrast, urges us not to enforce the Takings Clause as written.

*2180It worries that requiring payment to accompany a taking would allow courts to enjoin or invalidate broad regulatory programs "merely" because the program takes property without paying for it. Brief for United States as Amicus Curiae 12. According to the United States, "there is a 'nearly infinite variety of ways in which government actions or regulations can affect property interests,' " and it ought to be good enough that the government "implicitly promises to pay compensation for any taking" if a property owner successfully sues the government in court. Supplemental Letter Brief for United States as Amicus Curiae 5 (Supp. Brief) (citing the Tucker Act, 28 U.S.C. § 1491 ). Government officials, the United States contends, should be able to implement regulatory programs "without fear" of injunction or invalidation under the Takings Clause, "even when" the program is so far reaching that the officials "cannot determine whether a taking will occur." Supp. Brief 5.

This "sue me" approach to the Takings Clause is untenable. 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. Arrigoni Enterprises, LLC v. Durham , 578 U.S. ----, ----, 136 S.Ct. 1409, 1409, 194 L.Ed.2d 821 (2016) (THOMAS, J., dissenting from denial of certiorari). Instead, it makes just compensation a "prerequisite" to the government's authority to "tak[e] property for public use." Ibid. 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." Id. , at ----, 136 S.Ct., at 1410. If this requirement makes some regulatory programs "unworkable in practice," Supp. Brief 5, so be it-our role is to enforce the Takings Clause as written.

Of course, as the Court correctly explains, the United States' concerns about injunctions may be misplaced. Ante, at 2174 - 2177. Injunctive relief is not available when an adequate remedy exists at law. E.g. , Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 156, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). And even when relief is appropriate for a particular plaintiff, it does not follow that a court may enjoin or invalidate an entire regulatory "program," Supp. Brief 5, by granting relief "beyond the parties to the case," Trump v. Hawaii , 585 U.S. ----, ----, 138 S.Ct. 2392, 2427, 201 L.Ed.2d 775 (2018) (THOMAS, J., concurring); see id. , at ----, 138 S.Ct., at 2425 (expressing skepticism about "universal injunctions").

Still, "[w]hen the government repudiates [its] duty" to pay just compensation, its actions "are not only unconstitutional" but may be "tortious as well." Monterey v. Del Monte Dunes at Monterey, Ltd. , 526 U.S. 687, 717, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (plurality opinion). I do not understand the Court's opinion to foreclose the application of ordinary remedial principles to takings claims and related common-law tort claims, such as trespass. I therefore join it in full.

Justice KAGAN, with whom Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join, dissenting.

Today, the Court formally overrules Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City , 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). But its decision rejects far more than that single case. Williamson County was rooted in an understanding of the Fifth Amendment's Takings Clause stretching back to the late 1800s. On that view, a government could take property so long as it provided a reliable mechanism to pay just compensation, even if the payment *2181came after the fact. No longer. The majority today holds, in conflict with precedent after precedent, that a government violates the Constitution whenever it takes property without advance compensation-no matter how good its commitment to pay. That conclusion has no basis in the Takings Clause. Its consequence is to channel a mass of quintessentially local cases involving complex state-law issues into federal courts. And it transgresses all usual principles of stare decisis . I respectfully dissent.

I

Begin with the basics-the meaning of the Takings Clause. The right that Clause confers is not to be free from government takings of property for public purposes. Instead, the right is to be free from those takings when the government fails to provide "just compensation." In other words, the government can take private property for public purposes, so long as it fairly pays the property owner. That precept, which the majority does not contest, comes straight out of the constitutional text: "[P]rivate property [shall not] be taken for public use, without just compensation." Amdt. 5. "As its language indicates, [the Takings Clause] does not prohibit the taking of private property, but instead places a condition on the exercise of that power." First English Evangelical Lutheran Church of Glendale v. County of Los Angeles , 482 U.S. 304, 314, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). And that constitutional choice accords with ancient principles about what governments do. The eminent domain power-the capacity to "take private property for public uses"-is an integral "attribute of sovereignty." Boom Co. v. Patterson , 98 U.S. 403, 406, 25 L.Ed. 206 (1879) ; see Kohl v. United States , 91 U.S. 367, 371, 23 L.Ed. 449 (1876) (The power is "essential to [the Government's] independent existence and perpetuity"). Small surprise, then, that the Constitution does not prohibit takings for public purposes, but only requires the government to pay fair value.

In that way, the Takings Clause is unique among the Bill of Rights' guarantees. It is, for example, unlike the Fourth Amendment's protection against excessive force-which the majority mistakenly proposes as an analogy. See ante , at 2170 - 2171. Suppose a law enforcement officer uses excessive force and the victim recovers damages for his injuries. Did a constitutional violation occur? Of course. The Constitution prohibits what the officer did; the payment of damages merely remedied the constitutional wrong. But the Takings Clause is different because it does not prohibit takings; to the contrary, it permits them provided the government gives just compensation. So when the government "takes and pays," it is not violating the Constitution at all. Put another way, a Takings Clause violation has two necessary elements. First, the government must take the property. Second, it must deny the property owner just compensation. See Horne v. Department of Agriculture , 569 U.S. 513, 525-526, 133 S.Ct. 2053, 186 L.Ed.2d 69 (2013) ("[A] Fifth Amendment claim is premature until it is clear that the Government has both taken property and denied just compensation" (emphasis in original)). If the government has not done both, no constitutional violation has happened. All this is well-trod ground. See, e.g. , United States v. Jones , 109 U.S. 513, 518, 3 S.Ct. 346, 27 L.Ed. 1015 (1883) ; Albert Hanson Lumber Co. v. United States , 261 U.S. 581, 586, 43 S.Ct. 442, 67 L.Ed. 809 (1923). Even the majority (despite its faulty analogy) does not contest it.

Similarly well-settled-until the majority's opinion today-was the answer to a follow-on question: At what point has the government denied a property owner just *2182compensation, so as to complete a Fifth Amendment violation? For over a hundred years, this Court held that advance or contemporaneous payment was not required, so long as the government had established reliable procedures for an owner to later obtain just compensation (including interest for any time elapsed). The rule got its start in Cherokee Nation v. Southern Kansas R. Co. , 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295 (1890), where the Tribe argued that a federal statute authorizing condemnation of its property violated the Fifth Amendment because the law did not require advance payment. The Court disagreed. It held that the Takings Clause "does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken" so long as the government made available to the owner "reasonable, certain and adequate provision for obtaining compensation" afterward. Id. , at 659, 10 S.Ct. 965. Decade after decade, the Court repeated that principle.1 As another case put the point: The Takings Clause does not demand "that compensation should be made previous to the taking" so long as "adequate means [are] provided for a reasonably just and prompt ascertainment and payment of the compensation." Crozier v. Krupp A.G ., 224 U.S. 290, 306, 32 S.Ct. 488, 56 L.Ed. 771 (1912). And the Court also made clear that a statute creating a right of action against the responsible government entity generally qualified as a constitutionally adequate compensatory mechanism. See, e.g. , Williams v. Parker , 188 U.S. 491, 502, 23 S.Ct. 440, 47 L.Ed. 559 (1903) ; Yearsley v. W. A. Ross Constr. Co. , 309 U.S. 18, 20-21, 60 S.Ct. 413, 84 L.Ed. 554 (1940).2

Williamson County followed from those decisions as night the day. The case began when a local planning commission rejected a property owner's development proposal. The owner chose not to seek compensation through the procedure the State had created-an "inverse condemnation" action against the commission. Instead, the owner sued in federal court alleging a Takings Clause violation under 42 U.S.C. § 1983. Consistent with the century's worth of precedent I have recounted above, the Court found that no Fifth Amendment violation had yet occurred. See 473 U.S. at 195, 105 S.Ct. 3108. The Court first recognized that "[t]he Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation." Id. , at 194, 105 S.Ct. 3108. Next, the Court stated (citing no fewer than five precedents) that the Amendment does not demand that "compensation be paid in advance *2183of, or contemporaneously with, the taking." Ibid. "[A]ll that is required," the Court continued, is that the State have provided "a 'reasonable, certain and adequate provision for obtaining compensation.' " Ibid. (quoting Cherokee Nation , 135 U.S. at 659, 10 S.Ct. 965 ). Here, the State had done so: Nothing suggested that the inverse condemnation procedure was inadequate. 473 U.S. at 196-197, 105 S.Ct. 3108. So the property owner's claim was "not yet ripe": The owner could not "claim a violation of the [Takings] Clause until it [had] used the procedure and been denied." Id. , at 194-195, 105 S.Ct. 3108.

So contrary to the majority's portrayal, Williamson County did not result from some inexplicable confusion about "how the Takings Clause works." Ante , at 2171. Far from it. Williamson County built on a long line of decisions addressing the elements of a Takings Clause violation. The Court there said only two things remotely new. First, the Court found that the State's inverse condemnation procedure qualified as a "reasonable, certain and adequate" procedure. But no one in this case disputes anything to do with that conclusion-including that the equivalent Pennsylvania procedure here is similarly adequate. Second, the Court held that a § 1983 suit could not be brought until a property owner had unsuccessfully invoked the State's procedure for obtaining payment. But that was a direct function of the Court's prior holdings. Everyone agrees that a § 1983 suit cannot be brought before a constitutional violation has occurred. And according to the Court's repeated decisions, a Takings Clause violation does not occur until an owner has used the government's procedures and failed to obtain just compensation. All that Williamson County did was to put the period on an already-completed sentence about when a takings claim arises.3

Today's decision thus overthrows the Court's long-settled view of the Takings Clause. The majority declares, as against a mountain of precedent, that a government taking private property for public purposes must pay compensation at that moment or in advance. See ante , at 2169 - 2170. If the government fails to do so, a constitutional violation has occurred, regardless of whether "reasonable, certain and adequate" compensatory mechanisms exist. Cherokee Nation , 135 U.S. at 659, 10 S.Ct. 965. And regardless of how many times this Court has said the opposite before. Under cover of overruling "only" a single decision, today's opinion smashes a hundred-plus years of legal rulings to smithereens.

II

So how does the majority defend taking down Williamson County and its many *2184precursors? Its decision rests on four ideas: a comparison between takings claims and other constitutional claims, a resort to the Takings Clause's text, and theories about two lines of this Court's precedent. All are misguided. The majority uses the term "shaky foundations." Ante , at 2178. It knows whereof it speaks.

The first crack comes from the repeated assertion (already encountered in the majority's Fourth Amendment analogy, see supra , at 2181) that Williamson County treats takings claims worse than other claims founded in the Bill of Rights. See ante , at 2169 - 2170, 2170 - 2171, 2172 - 2173, 2177 - 2178. That is not so. The distinctive aspects of litigating a takings claim merely reflect the distinctive aspects of the constitutional right. Once again, a Fourth Amendment claim arises at the moment a police officer uses excessive force, because the Constitution prohibits that thing and that thing only. (Similarly, for the majority's other analogies, a bank robber commits his offense when he robs a bank and a tortfeasor when he acts negligently-because that conduct, and it alone, is what the law forbids.) Or to make the same point a bit differently, even if a government could compensate the victim in advance-as the majority requires here-the victim would still suffer constitutional injury when the force is used. But none of that is true of Takings Clause violations. That kind of infringement, as explained, is complete only after two things occur: (1) the government takes property, and (2) it fails to pay just compensation. See supra , at 2181 - 2182. All Williamson County and its precursors do is recognize that fact, by saying that a constitutional claim (and thus a § 1983 suit) arises only after the second condition is met-when the property owner comes away from the government's compensatory procedure empty-handed. That is to treat the Takings Clause exactly as its dual elements require-and because that is so, neither worse nor better than any other right.

Second, the majority contends that its rule follows from the constitutional text, because the Takings Clause does not say "[n]or shall private property be taken for public use, without an available procedure that will result in compensation." Ante , at 2184. There is a reason the majority devotes only a few sentences to that argument. Because here's another thing the text does not say: "Nor shall private property be taken for public use, without advance or contemporaneous payment of just compensation, notwithstanding ordinary procedures." In other words, the text no more states the majority's rule than it does Williamson County 's (and its precursors'). As constitutional text often is, the Takings Clause is spare. It says that a government taking property must pay just compensation-but does not say through exactly what mechanism or at exactly what time. That was left to be worked out, consistent with the Clause's (minimal) text and purpose. And from 1890 until today, this Court worked it out Williamson County 's way, rather than the majority's. See supra , at 2181 - 2182. Under our caselaw, a government could use reliable post-taking compensatory mechanisms (with payment calculated from the taking) without violating the Takings Clause.

Third, the majority tries to explain away that mass of precedent, with a theory so, well, inventive that it appears in neither the petitioner's nor her 15-plus amici 's briefs. Don't read the decisions "too broadly," the majority says. Ante , at 2175. Yes, the Court in each rejected a takings claim, instructing the property owner to avail herself instead of a government-created compensatory mechanism. But all the Court meant (the majority says) was that the plaintiffs had sought the wrong kind of relief: They could not get injunctions because *2185the available compensatory procedures gave an adequate remedy at law. The Court still believed (so says the majority) that the cases involved constitutional violations. Or said otherwise (again, according to the majority), the Court still understood the Takings Clause to prohibit delayed payment.

Points for creativity, but that is just not what the decisions say. Most of the cases involved requests for injunctions, but the equity/law distinction played little or no role in our analyses. Instead, the decisions addressed directly what the Takings Clause requires (or not). And as already shown, supra , at 2181 - 2182, they held that the Clause does not demand advance payment. Beginning again at the beginning, Cherokee Nation decided that the Takings Clause "does not provide or require that compensation shall be actually paid in advance." 135 U.S. at 659, 10 S.Ct. 965. In Backus v. Fort Street Union Depot Co. , 169 U.S. 557, 567-568, 18 S.Ct. 445, 42 L.Ed. 853 (1898), the Court declared that a property owner had no "constitutional right to have the amount of his compensation finally determined and paid before yielding possession." By the time of Williams v. Parker , 188 U.S. at 502, 23 S.Ct. 440, the Court could state that "it is settled by repeated decisions" that the Constitution allows the taking of property "prior to any payment." Similarly, in Joslin Mfg. Co. v. Providence , 262 U.S. 668, 677, 43 S.Ct. 684, 67 L.Ed. 1167 (1923), the Court noted that "[i]t has long been settled that the taking of property ... need not be accompanied or preceded by payment, but that the requirement of just compensation is satisfied when" there is a pledge of "reasonably prompt ascertainment and payment." In Hurley v. Kincaid , 285 U.S. 95, 104, 52 S.Ct. 267, 76 L.Ed. 637 (1932), the Court repeated that the "Fifth Amendment does not entitle [a property owner] to be paid in advance of the taking." I could go on-there are eighty more years to cover, and more decisions in the early years too-but by now you probably get the idea.

Well, just one more especially good demonstration. In Yearsley v. W. A. Ross Constr. Co. , 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940), the plaintiffs sought money damages for an alleged Takings Clause violation. For that reason, the Court's theory about suits seeking injunctions has no possible application. Still, the Court rejected the claim: The different remedy requested made no difference in the result. And yet more important: In refusing to find a Takings Clause violation, the Court used the exact same reasoning as it had in all the cases requesting injunctions. Once again, the Court did not focus on the nature of the relief sought. It simply explained that the government had provided a procedure for obtaining post-taking compensation-and that was enough. "The Fifth Amendment does not entitle him [the owner] to be paid in advance of the taking," held the Court, quoting the last injunction case described above. Id. , at 21, 60 S.Ct. 413 (quoting Hurley , 285 U.S. at 104, 52 S.Ct. 267 ; brackets in original). Because the government had set up an adequate compensatory mechanism, the taking was "within [the government's] constitutional power." 309 U.S. at 22, 60 S.Ct. 413. Once again, the opposite of what the majority pronounces today.4

*2186Fourth and finally, the majority lays claim to another line of decisions-involving the Tucker Act-but with no greater success. The Tucker Act waives the Federal Government's sovereign immunity and grants the Court of Federal Claims jurisdiction over suits seeking compensation for takings. See 28 U.S.C. § 1491(a)(1). According to the majority, this Court's cases establish that such an action "is a claim for a violation of the Fifth Amendment"-that is, for a constitutional offense that has already happened because of the absence of advance payment. Ante , at 2177, n. 7 (emphasis in original); see ante , at 2173 - 2174. But again, the precedents say the opposite. The Tucker Act is the Federal Government's equivalent of a State's inverse condemnation procedure, by which a property owner can obtain just compensation. The former, no less than the latter, forestalls any constitutional violation by ensuring that an owner gets full and fair payment for a taking. The Court, for example, stated in United States v. Riverside Bayview Homes, Inc. ,