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.

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