The Unfinished Business of Horne v. Department of Agriculture
It is always tempting in looking at Supreme Court cases to think of them narrowly, chiefly in light of the fact patterns that they examine. But that minimalist approach is intellectually risky because it runs the risk of focusing on one discrete part of the legal doctrine in isolation from the larger whole of which it is a part. What is often missing is a keen awareness of the need to integrate cases with one another in service of a general theory that is faithful to both the text and structure of the Constitution. In this instance, the Takings Clause is at issue. The Clause states: “[N]or shall private property be taken for public use, without just compensation.” The facts of any particular case should serve as a springboard to discuss the full range of relevant doctrinal issues. That analysis works well when the precedents are in good order. The new case need only be fitted into the preexisting framework. But the process is quite different whenever the existing pattern of case law is in a sad state of disarray. Now each new piece to the puzzle only reveals the gaps, overlaps, and inconsistencies in the existing construct. At this point a total reexamination is typically in order.
It is widely agreed that takings law is something of a muddle. But there is far less agreement on what to do in order to set it right. There are those who think that because the effort to create islands of per se takings in a sea of rational basis law is doomed to failure, the government should therefore be given broad sway over all matters of economic regulation, taxation, and control. On that view, even the modest effort to defend the per se takings rule — which in any event is overstated — for permanent physical takings is a mistake, and the entire area should be governed by the three part takings test developed in Penn Central Transportation Co. v. City of New York. Yet it is equally possible — in my view necessary — to insist on coherence but run it in the opposite direction, so that all regulatory takings are treated under the more rigorous framework on the same basis as physical takings. What that means in this context is that the rational basis test is out. What it does not mean is that all regulations of property and contract are per se unconstitutional. Instead, the government can win if it either has some strong police power justification for limiting or shutting down private activity or by showing that the comprehensive scheme in question affords compensation, typically in-kind, for the parties whose right to use or dispose of property is limited in some substantial way. Both of these points of analysis eliminate the middle ground by showing the huge chasm between progressive and classical liberal theory on the desirability of strong (but not absolute) property rights.
