Does a Regulation That Fails to Advance a Legitimate Governmental Interest Result in a Regulatory Taking?

Article excerpt


The most important and controversial question in regulatory takings law today is whether a regulation that fails to advance a legitimate governmental interest results in a compensable taking under the Fifth Amendment to the United States Constitution.(1) The United States Supreme Court appears to be divided on the issue and, for the moment, is overtly undecided. How the Court ultimately resolves this question will go a long way toward determining the scope of regulatory takings doctrine.

Those who closely follow takings developments anticipated that the Supreme Court would resolve the issue in the case of City of Monterey v. Del Monte Dunes at Monterey, Ltd. (Del Monte Dunes).(2) However, because of the odd procedural posture of the case, the Court acknowledged the importance of the issue in its May 1999 ruling, but left it for resolution in some future case.(3) Therefore, the lower federal and state courts have been left to muddle through as best they can.

This Article asserts that, in general, the failure of a regulation to advance a legitimate governmental interest does not result in a taking. Such an action may be illegal on some other basis--for example, under the Due Process Clauses of the Fifth and Fourteenth Amendments(4)--but it is not a taking.

The gist of the argument is as follows. The Takings Clause(5) was originally drafted to apply only to direct physical appropriations of private property for public use.(6) Since the beginning of this century, the Supreme Court has interpreted the clause to apply not only to appropriations but also to regulations that are so economically burdensome that they are equivalent to appropriations.(7) In the words of Justice Holmes, the basic issue in a regulatory takings case is whether the regulation "has very nearly the same effect for constitutional purposes as appropriating or destroying [the property]."(8) However, the purported means-ends test would introduce into takings jurisprudence a strain of analysis that is fundamentally at odds with the origins and modern understanding of the Takings Clause. By incorporating what is in essence a due process analysis, the purported means-ends takings test would expand the focus of regulatory takings doctrine from burdensome but otherwise valid government actions to arbitrary or invalid government actions, without regard to the type of economic burden they may impose. In general, this type of means-ends analysis has no logical place in regulatory takings doctrine.

Part II of this Article describes the means-ends takings test, its background, and its current status. Part III outlines and discusses the arguments for and against the use of the means-ends takings test and contends that the arguments for rejecting its use are more persuasive. Parts IV and V analyze respectively the two recent cases of Eastern Enterprises v. Apfel(9) and Del Monte Dunes, and describe how the two cases suggest that the Supreme Court may be preparing to reject the means-ends takings test. Part VI briefly raises, but does not attempt to definitively resolve, the question of whether a failure to advance a legitimate state interest may preclude a finding of a taking. Part VII explains why, as a practical matter, it is important whether traditional due process means-ends analysis is imported into the takings doctrine. The Article concludes with the hopeful suggestion that the Supreme Court's recent takings decisions point toward the emergence of a new, more coherent regulatory takings doctrine.


The famously muddy doctrine of regulatory takings is as muddy as it gets when it comes to the question of whether the alleged failure of a regulatory action to advance a legitimate governmental interest (in shorthand, the "purported means-ends test") is really a takings test at all. More than twenty years ago, in Penn Central Transportation Co. …