Document Type

Article

Publication Date

5-2023

Abstract

In the summer of 2021, the Supreme Court released opinions in three Takings Clause cases. The Justices did not focus primarily on the dozen words that compose that Clause. Instead, the Court considered the expansive judicial gloss on those words, the extratextual aspects established by takings opinions over the last 100 years, since the “too far” test introduced by Justice Holmes in Pennsylvania Coal. The “Takings Gloss” is the product of holdings expanding the meaning and reach of the Takings Clause, a tangled web of opinions that have troubled lawyers, judges, and commentators for several decades. With the latest contributions, the Takings Gloss (original Clause in bold) now reads:

[N]or shall private or public property, including rights in property such as the right to exclude, be taken for public use, purpose, or benefit (even if the property taken by eminent domain is transferred to a new private owner), or subjected to regulation that goes too far, or be physically occupied even temporarily, or exacted as an unreasonable development condition, by the government or by private parties delegated by the government, without just compensation, unless the property owner is seeking only injunctive relief.

This Article highlights the three newest takings cases (Cedar Point Nursery, PennEast, and Pakdel); introduces a broad range of alternative, non-takings avenues of relief for aggrieved property owners (in constitutional, statutory, and common law); and demonstrates the real dangers of the Takings Gloss in three critical contexts: (1) climate change mitigation and adaptation, (2) COVID-19 restrictions and regulations on landlords and business owners, and (3) land use regulations designed to increase the crucial supply of affordable housing and create more diverse, equitable, and inclusive communities. The Court can abandon the Takings Clause expansion project, secure in the knowledge that landowners and other property owners are adequately protected from government harms.

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