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Home > Journals > Michigan Law Review > MLR > Volume 97 > Issue 1 (1998)

 

Abstract

When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to the level of a taking. Commentators have bypassed the question of what the Clause demands of regulatory restrictions that suffer from other legal flaws, such as being without statutory authority or being arbitrary and capricious. This Note suggests there are compelling reasons that one such flaw - the action's being unauthorized, or ultra vires4 - should be fatal to takings claims directed against state governments. Whether these particular takings must be compensated remains to be determined conclusively. This issue may be presented in several procedural postures. A property owner might bring both a takings claim and an administrative law claim complaining that the regulation is ultra vires. The court might then enjoin the regulatory action on the latter basis, converting what would have been a permanent taking into a temporary taking. The issue also arises when a court has enjoined the regulation in a previous action and a property owner later seeks just compensation for the duration of the enjoined action. In any event, because courts enjoin unauthorized actions, such flawed regulations can, at most, amount to temporary takings.

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