Deciding who should define takings, especially regulatory takings,(1) is a daunting task. It is daunting because years of effort by all three branches of the federal government have failed to produce an effective solution. For very different reasons, each branch has failed to develop a sound approach to regulatory takings.(2) It is also daunting because the definition of a regulatory taking is so fundamentally important to the future of our economic, legal, political, and natural systems(3) that it may require the wisdom of Solomon to resolve.
Which branch, then, should define when a taking occurs because of regulatory conduct? The response will depend on the values and purposes that an individual attaches to the Takings Clause(4) and on the expectations that an individual has for the takings decision-making process.(5) The response of Professor Peter Byrne and others is that the regulatory takings doctrine raises utilitarian issues best handled by the democratically accountable legislative branch.(6) My response is that the branch best able to provide principled decision making should handle the regulatory takings problem. As used in this Article, the phrase "principled decision making" refers to decision making that is principled in the sense of process, and not necessarily in the sense of providing a unified or coherent set of substantive principles--that is, decision making that is objective and neutral and not controlled by the personal interests or beliefs of the decisionmaker or the parties directly affected by the decision.(7)
What explains the inherently different approaches to solving the regulatory takings problem? Perhaps fundamentally different expectations about what a solution can or should accomplish explain the differences. In any event, my suggestion to focus on the branch best able to engage in principled decision making results in part from previous unsuccessful attempts by all three branches of the federal government to address the regulatory takings problem.(8) Those unsuccessful attempts have convinced me that the problem is far too complex to yield a single substantive solution or a coherent set of principles. I am therefore much more willing to focus on the takings decision-making process and on a branch's capacity for principled decision making in determining which branch should have primary responsibility for defining regulatory takings.
This Article focuses on the problem of choosing the appropriate decisionmaker for regulatory takings issues. To support my conclusion that the judicial branch should be the primary takings decisionmaker, Part I of the Article reiterates the constitutional dimensions of the regulatory takings problem. In addition to discussing why government action that excessively regulates property poses a constitutional takings issue even though the action is otherwise a valid exercise of the police power, Part I examines the potential for political process unfairness to property owners, a central concern of the Takings Clause.(9) Then, in Part II, the Article addresses each branch's role in defining regulatory takings--a topic of much debate in this Symposium issue.(10) This Part first makes the case for judicial branch resolution of regulatory takings issues and then examines the case against choosing the legislative or executive branch as the primary regulatory takings decisionmaker.(11) Each discussion explains why the judiciary is the branch best able to engage in principled decision making and to avoid the politics of takings. Finally, Part III summarizes the conclusions of the Article and introduces the main themes of this Symposium issue.
I. THE CONSTITUTIONAL DIMENSION OF THE REGULATORY TAKINGS PROBLEM
In his 1995 article in Ecology Law Quarterly, Professor Peter Byrne argued that the regulatory takings doctrine should be abolished and that the legislative process should instead be used to resolve the essentially utilitarian issues raised by the doctrine. …