for Reason Magazine
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The federal government suffered a major defeat today at the U.S. Supreme Court in the case of Arkansas Game & Fish Commission v. United States. In their unanimous decision, the justices rejected the government’s sweeping claim that a series of recurring floods induced by the U.S. Army Corps of Engineers did not qualify as a taking of property under the Fifth Amendment because the flooding was only temporary in duration. As Justice Ruth Bader Ginsburg wrote for the Court:
Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.
The Court also rejected the government’s assertion that the Army Corps of Engineers needed to be free from the constraints of the Takings Clause in order to effectively do its job:
Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction.
As for the surprising claim made during oral argument by Deputy Solicitor General Edwin Kneedler, who told the justices that no property owner whose land lay below a government dam could ever bring suit under the Takings Clause in response to a government-induced flood, the Court observed that because this novel argument “was not aired in the courts below, and [was] barely hinted at in the brief the Government filed in this Court…we express no opinion on the proposed upstream/downstream distinction.”
I’m a little surprised the Supreme Court didn’t reject Kneedler’s bogus upstream/downstream distinction outright, given that most of the justices seemed so dismayed by it during oral argument (Justice Anthony Kennedy likened Kneedler’s position to the “old moral refuge” of German rocket scientists who said “I make the rockets go up; where they come down is not my concern”), but perhaps the justices opted for a unanimous ruling against the government rather than a divided opinion where the majority delivered an even more forceful denunciation.
Bottom line: The federal government went to court in the hopes of restricting property rights and came up short.