Property Rights After Horne
ABSTRACT: This Article analyzes the Supreme Court’s 2015 decision in Horne v. Department of Agriculture, which extended to personal property rules regarding “physical takings” previously applicable only to real property. It considers how the majority and other opinions in Horne relate to substantive and procedural issues in regulatory takings jurisprudence. In particular, the Article asserts that Horne, in tandem with the Court’s 2013 decision in Koontz v. St. Johns County Water Management District, may be a basis for rectifying problems resulting from complexities emanating from Penn Central Transportation Co. v. City of New York and other takings doctrines.
In Horne v. Department of Agriculture,1 the U. S. Supreme Court held that government appropriation of personal property violates the Fifth Amendment’s Takings Clause.2 As Chief Justice Roberts pithily noted for the Court, “The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your house.”3 While that basic principle apparently enjoyed unanimous support,4 the Court’s opinion broke no other ground. Taken together, the Justices’ four opinions revisited troubled aspects of the Court’s takings jurisprudence and presaged its need to revisit fundamental issues long unresolved.
This Article analyzes Horne in the context of possible future developments in takings law. It asserts that, in conjunction with other recent property rights cases, Horne demonstrates the Court’s enhanced receptivity to arguments that takings jurisprudence has become too encrusted with procedural snares and is too conceptually convoluted.
While Horne applied the Court’s precedents, distinguishing physical from regulatory takings to personal property, I assert that its ultimate importance for both takings and unconstitutional exactions law might be in decreasing reliance upon rigid multi-factor tests and multi-pronged analysis and increasing faithfulness to the Court’s admonition in Armstrong v. United States5 that, “The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
