Due Process Flashcards
Takings–Intro statement
RS: The Fifth amendment to the US applies to the federal government and is applicable to the states through the DPC of the 14th amendment. It provides that the government shall not take private property for public use without just compensation.
- The 5th amd is not a grant of power, but a limit on power.
- Govts have traditionally had the power to take private property through eminent domain, and that power has been reserved to the states through the 10th amendment.
RS: The 5th amd limits the power by prohibiting a taking unless it is for a public purpose. Also requires payment of just compensation.
Takings–definitions/rules
RS: A taking will almost always be found when the government physically appropriates a person’s property. Even if only a part of the person’s property. Ex: where law required apartment building owners install a cable TV line.
Regulatory Taking:
RS: There can also be a taking if a regulation affects the value or use of a person’s property. Inverse condemnation action for compensation.
Steps:
1. The court will first look to see if the regulation takes all of the economic value of the property. If so, the regulation is considered to be a physical appropriation, and there is a taking. (all of the property or part of the property with all value)
- Regulations that merely decrease the value of property by prohibiting its most beneficial use doe not constitute a taking if they leave an economically viable use of property.
Consider:
a. economic impact of regulation
b. whether the regulation substantially interferes with distinct, investment backed expectations of the claimaint.
c. must be reasonable expectations (i.e. purchasing property based on investment expectations v. survey of already owned land)
DPC–Reasonable Government Action
The DPC requires the government action be reasonable. A law affecting fundamental rights will be held to be reasonable only if it passes strict scrutiny.
In all other cases, rational basis test applies.
