Election Day 2006 and Private-Property-Protecting Measures: While Many Proposals Failed, the Movement Is Very Much Alive

By VIKRAM DAVID AMAR

Friday, Nov. 24, 2006

This Election Day, many states' voters considered measures that proponents said were necessary to enhance legal protection of private property rights. A number of states had initiatives on the ballot that purported to respond to the Supreme Court's 2004 Kelo v. New London ruling by trying to limit government's ability to take private property to accomplish economic redevelopment. (As I discussed in an earlier column, however, Kelo is much less radical, as a matter of constitutional law, than some media accounts would have you believe.)

Some state propositions also tried to mandate a much higher level of government compensation than is currently required by law in cases where government regulation reduces, but does not destroy, the value of private property.

Many of these measures failed (some because they were drafted so broadly and ambiguously), but the legislative property rights movement that inspired them is far from dead. And many of the ambitious legislative proposals still kicking around might themselves run afoul of the Constitution.

HR 4772 - A Federal Proposal to Eliminate an Exhaustion of State Remedies Requirement

One example: a move by the lame-duck Congress to enact a version of the Private Property Rights Implementation Act of 2005. The House has already passed a rendition of the legislation, HR 4772, and there is an effort going on to get the bill approved in the Senate as well.

The proposed law has a lot of provisions that attempt to change the state of current Takings Clause law. Some of the most interesting sections deal with the requirement, under current law, that forces a landowner who alleges that a state or local property regulation amounts to an impermissible Fifth Amendment taking (either because it is not "for public use," or because the compensation for the taking is insufficient) to begin his or her challenge by making use of any remedial procedures and mechanisms provided by the relevant state. Only after doing so, may the landowner resort to the federal courts to press the Fifth Amendment claim for compensation. In legal parlance, this is sometimes known as an "exhaustion" requirement; the plaintiff must "exhaust" (use up) his or her state remedies before heading to federal court.

The Supreme Court has reiterated the point that exhaustion of remedies is, indeed, required in this context in a number of rulings, and perhaps most prominently in Williamson County Regional Planning Commission v. Hamilton Bank decided over 20 years ago.

HR 4772, however, would eliminate the requirement that a takings Plaintiff exhaust state remedies, and would instead permit a landowner who claims his property was taken by dint of a state regulation to proceed directly to federal court.

Congress' Power to Enact HR 4772: Can It Invoke Its Authority to Regulate Federal Judicial Procedures?

Ordinarily, Congress has wide latitude to legislate concerning the creation or removal of hurdles one must overcome before filing claims in federal court.

After all, the Constitution gives Congress the power to "ordain and establish" and "constitute" lower federal courts, and that has generally been thought to give Congress the power to regulate the procedures concerning access to those courts -- providing, that is, that the case is one that the Constitution permits to be heard in the federal judiciary in the first place.

Moreover, as a general matter, claims of violation of federal constitutional rights are certainly among the kind that the Constitution allows federal courts to hear.

But one should not jump from these propositions to the conclusion that HR 4772 is constitutional - for a recent line of Supreme Court cases may stand directly in the proposed legislation's path.

The Supreme Court's Reminders that Congress Cannot Redefine Federal Constitutional Rights

In that line of cases, the Court has said that Congress is not permitted to alter the substantive meaning of constitutional rights, as that meaning has been defined by rulings of the Court. As the Court put the point in one case, Congress may not, in the guise of facilitating enforcement of a constitutional right, "change[] what that right is." Putting the point another way, the Court has also observed that Congress "may not supersede this Court's decisions interpreting and applying the Constitution."

One key question, then, is this: Is the Williamson rule of exhaustion of state remedies part of the substantive definition of the Fifth Amendment's right to be free of uncompensated takings, or is it, instead, merely a procedural mechanism for vindicating that substantive right?

There is certainly a strong argument that the exhaustion requirement is part and parcel of the Fifth Amendment right, as that right has been defined by the Supreme Court. As a number of law professors opposing HR 4772 have collectively observed, the Williamson Court itself noted that "because the Constitution does not require pretaking compensation, and is instead satisfied by reasonable and adequate provision for obtaining compensation after the taking, the State's action here is not 'complete' until the State fails to provide adequate compensation for the taking" (emphasis added). In other words, the very state action that is necessary to pursue a Fifth Amendment claim has not occurred, in its full totality, until the plaintiff fails to exhaust his or her remedies.

Elsewhere, the Williamson opinion noted in a similar vein that "because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing" an action in federal court. (Emphasis in original). Again, with this language, the Court is suggesting that the exhaustion requirement is not merely procedural, but is a substantive part of the Fifth Amendment right itself.

All of this is quite consistent with the way the Williamson Court expressed its own bottom line: "[I]f a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used and been denied just compensation" (emphasis added).

Note, here, that the Court did not say merely that a plaintiff cannot assert his claim until he has exhausted state remedies; instead the Court used language suggesting there is no claim to be asserted until state remedies have proven useless.

Is There A Sufficient Record of State Lawlessness Here? It's Not Likely.

Congress is permitted to protect constitutional rights by providing remedies that go beyond the core of the rights themselves, but only if Congress can show that such broader curative devices are necessary and appropriate to rein in state lawlessness.

As the Court has put the point, "[t]here must be congruence and proportionality between the [constitutional] injury to be prevented or remedied and the [prophylactic] means adopted to that end."

But HR 4772 would seem somewhat likely to fail that "congruence and proportionality" test. That's because the measure does not appear to be supported by the kind of extensive findings that the "congruence and proportionality" test requires - findings showing that state compensation remedies are systematically resulting in uncompensated takings, such that circumventing the state remedial procedures is a necessary prophylactic to ensure that people's Fifth Amendment rights are being protected.

Is the "Congruence and Proportionality" Test Limited to Congress' Exercise of Section 5 Powers?

One possible counterargument here is that the cases in which Congress has been denied the power to implement a broader substantive vision of a constitutional right than the Court has already recognized have tended to involve Congress' powers under Section 5 of the Fourteenth Amendment, and in the present situation, Congress may also be able to invoke its powers over the procedural hurdles concerning access to the federal courts.

But such a counterargument would seem not to convince this Supreme Court, which has repeatedly and in a variety of settings made clear its view that Congress can't transform substance into procedure simply by its own say-so. By removing procedural hurdles for assertion of Fifth Amendment claims, Congress would effectively be redefining the obligations states had to comply with under the Fifth Amendment - and that means redefining the substance of the Amendment.

Moreover, and relatedly, in the Supreme Court cases that introduced and applied the "congruence and proportionality" test, the Court seemed concerned not just with Section 5 powers, but rather more generally with federalism and separation of powers principles. And there is no doubt that removal of the state-remedy exhaustion requirement, in the Takings Clause context, will impose upon states in a way that implicates concerns of federalism.

Besides, Section 5 is the clause specifically designed to allow Congress to protect constitutional rights; if that clause is limited by "congruence and proportionality" principles, so too should other parts of the Constitution that empower Congress in this arena.

For all these reasons, there is a strong chance that HR 4772 and bills like it would, if enacted into law, be struck down by the Supreme Court. It is a separate question, of course, whether the precedents that suggest this result were rightly decided or not (and I think some of them were not). The point is that these precedents, which are good law, represent the current view of the Supreme Court on the matter. Accordingly, diligent legislators in Washington should consider that point before enacting a bill that would clash with the Court's current view of the Constitution.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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