Bench Memos

Supreme Court Hands DOJ Another Unanimous Defeat

Today the Supreme Court handed down its decision in a much-anticipated property-rights case, Arkansas Game and Fish Commission v. United States. It was yet another unanimous defeat for an administration that has developed a noted pattern of adopting positions that fail to sway even one justice.

Today’s case involved a federally owned dam that the Army Corp of Engineers periodically opened to release water. Over several years they decided to release the water over longer periods of time than originally planned, which helped some farmers but interfered with timber growth on land owned by the plaintiff, the Arkansas Game and Fish Commission. The question before the Court was whether this temporary but repeated flooding constituted a taking, which would require the federal government to compensate owners for the loss of use of their land while it was flooded.  

As Justice Scalia noted during oral argument, while dams and other public-works projects may benefit citizens in general, if they harm an individual owner it’s only fair for that owner to be compensated: “I mean, the issue is who is going to pay for the wonderful benefit to these farmers. Should it be everybody, so that the Government pays, and all of us pay through taxes, or should it be this — this particular sorry landowner who happens to lose all his trees?”

The Solicitor General made what Ilya Somin judged a “remarkable argument” that even permanent flooding caused by a federally owned dam could never be considered a taking because the landowners should have predicted that the dam risks causing such flooding downstream and dams are otherwise so beneficial. This appears to be yet another case in which the government went beyond what was logically required to make its point, and its extreme position likely contributed to its failure to win any justices over. Justice Ginsburg, in her opinion, noted the novelty of this argument, even in the context of this case — it appears to have never been fully articulated until oral argument.

In fact the Court only went so far as to decide that the Fifth Amendment’s Takings Clause doesn’t have a blanket exception for temporary flooding, which seems eminently reasonable, especially in light of the fact that flooding in general and other temporary takings still do trigger that clause. Thus today’s case still leaves takings jurisprudence in the realm of case-by-case factual analyses with few hard and fast rules. Nonetheless, it is heartening to see that the Court has rejected this proposed expansion of the government’s ability to destroy or render useless privately or state-owned land.

Justice Alito recently highlighted this administration’s tendency to make arguments that push the Constitution beyond its proper bounds, often going farther than even the most liberal justices are willing to follow. Add this one to the list.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

Most Popular

U.S.

Two Minnesota Republican Candidates Assaulted

Two Republican candidates for state office in Minnesota have been physically assaulted in recent days, leading prominent Republican lawmakers to caution their Democratic colleagues against employing inflammatory rhetoric. Republican state representative Sarah Anderson was punched in the arm last week after ... Read More
PC Culture

Warren Is a Fraud

Senator Elizabeth Warren (D., Mass.) has been telling a story for years. It’s a deeply romantic story about her parents and their young love, fraught with the familial bigotry of an earlier time. Here’s how she told it this week in a video she released in preparation for her 2020 run: My daddy always said he ... Read More
Elections

The State of the Race for the House

Way back in January, I went through the then-34 seats where a Republican incumbent was retiring and concluded that most were in deeply red districts and not likely to flip to Democrats. Pollsters and media organizations are less inclined to conduct surveys of House races, both because there’s less public ... Read More