Expropriatory Intent: Defining the Proper Boundaries of Substantive Due Process and the Takings Clause

Abstract

"Expropriatory Intent: Defining the Proper Boundaries of Substantive Due Process and the Takings Clause" examines and critiques the contemporary Supreme Court's expansive construction of the Takings Clause. Although the Supreme Court generally has decried the use of substantive due process to invalidate economic and social legislation, many of the recent regulatory takings cases deploy the Takings Clause to second guess the legitimacy or fundamental fairness of such enactments. The article argues that when a plaintiff alleges that a federal or state law is fundamentally unjust or arbitrary, the federal courts should analyze the merits of the claim under the rubric of substantive due process, rather than the Takings Clause. As Justice Holmes observed in Mahon, some regulations, although styled police power enactments, constitute de facto expropriations of private property. Recent regulatory takings cases, however, utilize a hodgepodge of tests to determine the essential nature of the government's action. In lieu of continued reliance on these disparate tests, federal courts should ask and answer a single inquiry: in the totality of the circumstances, has the government acted with expropriatory, rather than regulatory, intent (i.e., is the regulation effectively a proxy for the exercise of the eminent domain power)? This approach would bring needed doctrinal clarity to a muddled area of constitutional law. Moreover, it would preclude takings claims associated with most basic health, safety, and environmental laws and regulations (all of which would be, and should be, subject to substantive due process review).