The Fifth Amendment has a ‘just compensation’ clause, whereby private property can be taken for the Public Good but the owner must be recompensed at fair market value.
Has there ever been a Supreme Court case where it was decided that ‘just compensation’ is required under the Fifth Amendment when the private property is not a building or other real estate?
Here’s an interesting case about the City of Oakland’s attempt to take the Raiders by eminent domain.
They don’t reach the question of how much should be paid. Generally it’s “fair market value,” and you can have a trial to determine that if the parties disagree.
There are lots of cases that involve takings other than buildings.
For instance, Interest on Lawyer’s Trust Accounts (IOLTA) is a private property right subject to the takings clause. Imagine that your attorney holds your money in a bank trust account for you. If the account earns interest, the government can’t require that the lawyer pay all the interest to subsidize legal services for the poor. It’s your interest, and it would be an unconstitutional taking for the government to just keep it without compensation. See Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998), Phillips v. Washington Legal Foundation :: 524 U.S. 156 (1998) :: Justia US Supreme Court Center
There are a bunch of other takings cases that don’t involve real property, like your property rights in trade secrets about whether you are using pesticides (Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)) or your partially-built boats (Armstrong v. United States, 364 U.S. 40 (1960)).
There are also some interesting cases where just compensation was not required. For instance, the government can (and did) take away your right to sell certain “preexisting avian artifacts” when it banned the trade in eagle parts under the Eagle Protection Act and the Migratory Bird Treaty Act, even if the birds were legally killed before the acts. See Andrus v. Allard, 444 U.S. 51 (1979).
Back in 1881 the Court ruled in James v. Campbell that intellectual property (in this case, a patent) was covered under just compensation the same as real property. Horne v. Department of Agriculture (2015) explicity mentioned “personal property” in addition to “real property.”
Also, maybe U.S. v Causby? The Air Force was flying aircraft at extremely low altitudes above a farm, which ended up killing a bunch of chickens. The court ruled that when the Air Force used the air space below controlled minimums, it owes compensation to the landowners below. I don’t know if airspace is “real property” or not.
Not exactly what I’m looking for. Let’s try this:
The government banned the sale of lawn darts, AKA ‘Jarts’. Now, it’s perfectly legal to own lawn darts. It’s perfectly legal to buy and sell ‘replacement parts’, and since the darts were not sold, a person can assemble their own – but cannot then sell the assembled darts in a garage sale or eBay or whatever. Right now, no compensation would be required because the owner still has his Jarts. Now let’s say that the government not only banned the sale of lawn darts, but they also banned possession of them and did not provide a mechanism (such as registration and paying a tax) whereby current owners could retain them. Lawn darts would thus be subject to seizure. I have no idea what they sold for when they were legal to buy, but let’s randomly pick $39.95. If the government required forfeiture of lawn darts, would they be required to pay ‘just compensation’ for the value at the time they were outlawed, in this case, $39.95? Has there ever been a court ruling on the forfeiture of this sort of ‘thing’?
The Supreme Court recently ruled that a government program constituted a taking of raisins, for which the growers were entitled to compensation.
Exactly what I was looking for.
Thank you.
But is the lawn darts example a “taking”? The government is not taking your darts for their own purposes. They’re criminalizing the possession. You can comply with the proposed law by smashing them up and disposing of the pieces.
What about new drugs? If the chemists discover a new drug and the government decides it’s too dangerous and puts it on the total prohibition list, does a chemist have a right to compensation?
Before or after a government approval process?
The question is why they criminalise possession. The reason their sales were banned, and the reason for the hypothetical banning of possession, is ‘for the public good’.
You might be interested in digging into Executive Order 6102. Back in 1933 Franklin Roosevelt ordered limitations on the amount of gold an individual could hold. People were ordered to surrender their excess gold at a fixed price of $20.67/oz. Not only that, but they were given less than a month to comply.
Why $20.67? Because that was the value defined by the Gold Standard Act of 1900 for minting gold coins.
But by 1933, speculators were hoarding gold, and Great Britain, Australia, New Zealand, and Canada had already abandoned the gold standard and Austria and Germany been crippled by bank runs.
In other words, a speculator probably could have gotten considerably more than $20.67/oz. for his gold. In fact, the government turned around and sold gold to other governments for $35/oz. In other words the government banned the possession of gold AND set the price it would compensate the owners. In paper money, no less!
This was all done by Roosevelt under the authority of the War Powers Act of 1917, which had never been repealed. It took Congress a year to pass an actual law, which wasn’t repealed until 1974.
While an early version of the order was overturned by a federal judge on a technicality (soon corrected) I can’t find anything that suggests it ever faced a serious challenge in court. Of course it was the 1930s.
The tension you’re highlighting is one between the “police power” traditionally held by states and the Fifth Amendment’s prohibition of “takings.” Land-use (zoning) law has quite a line of cases trying to determine when a government regulation goes so far that it must be considered a taking. These are sometimes called “inverse condemnation” cases.
At the moment, we know that a regulation involving physical trespass to property is generally a taking; Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Requiring coastal access dedication in return for permission to build on the beach lacks the necessary “essential nexus” between a legitimate state interest and the requirement; Nollan v. California Coastal Commission, 483 U.S. 825 (1987). And the Supreme Court has ruled that a regulation that deprives an owner of all economically beneficial uses of land—including the right to build a dwelling-house—is outside the Framers’ understanding of permissible police power and constitutes a taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)
I agree. Bump stocks are a good example. Let’s say that the BATFE recategorized bump stocks as a Class III banned item (and further would not allow them to be registered and taxed). That is not a “taking” of your bump stock for a public purpose. That is the state using its police power to regulate for the public health, safety and morals.
Let’s say I have a baggie of weed in the kitchen. If the cops get a search warrant for my house, must they pay me fair market value before they seize it? What if I legally bought it in Las Vegas?
Public health and safety are public purposes.
It’s legal if you have it where it is legally. If you take it to a place where it is illegal, then you voluntarily give up the right to possession.
Someone else’s google skills might be better than mine, but that is not what a “taking” is. If the government takes your land or chattel, while allowing others to possess the same, and it does so for public purposes, it must give you just compensation.
A general police power regulation which bans a certain good or commodity is not a taking. If it was, then nothing could be outlawed without a payment to owners. Did CA and MD have to compensate owners of “assault weapons”? After the 13th amendment was passed, were slave owners compensated?
No, but Congress seems to have been worried enough about the possibility to prohibit that in the 14th Amendment (“any claim for the loss or emancipation of any slave…shall be held illegal and void”).
In environmental law we run into takings regularly. A lot of state and federal rules on logging and forest practices are basically held up by smoke a mirrors. The government has basically said there is no such thing as taking if we can justify it with “future generations” or something.
(I actually like the laws, the decisions just seems weirdly simple/stupid)
US civil forfeiture laws allow police to take assets from persons who are suspected of involvement with a crime but not charged with anything. But I’m not sure if any case has been before the Supreme Court.
I assume you are referring to those states’ assault weapons bans. Did anyone who owned those weapons have to turn them in after the laws were adopted? I understand that under the Maryland assault weapons ban, if a person owned the assault weapons prior to the effective date of the statute, the person could continue to own and use them, but not sell them.
Same thing with yard darts. Nobody went door-to-door collecting all the yard darts in the world after the ban on their sale. Nobody was expected to crush their yard darts. The yard darts were recalled by their manufacturers/retailers and people could get their money back but consumers weren’t required to do so.
Owners were given a period wherein they could register their legally-purchased firearms and keep them.