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The Takings Clause and Compensation for Innocent Property Owners Who have their Possessions Seized During Criminal Investigations:

In his interesting post responding to my critique of the Federal Circuit's AmeriSource decision, Orin argues that the Takings Clause does not require compensation in these cases.

Orin claims that "the argument that the Takings Clause applies is hard to make from an originalist perspective [because] Innocent third parties have long had their property rights interfered with in criminal investigations." There is a big difference between having your property "taken for public use" (the term used in the Fifth Amendment) and merely having it "interfered with." A search of a house is not a taking. There is, however, a taking if the government kicks you out of your house and takes control of it - either permanently or for an extended period of time. To my knowledge there is no evidence that the framers and ratifiers of the Bill of Rights accepted the view that there isn't a taking in cases where the government actually seizes the property of innocent third parties during a criminal investigation, as opposed to merely "interferes" with it. As the Court explained in Bennis, there were some early cases when the courts tolerated a seizure of property that had been used in criminal activity by a person whom the owner had entrusted it to. But that is very different from the seizure of property that the owner had never entrusted to a wrongdoer who went on to use it to commit a crime.

I recognize, of course, that the line between taking and interference may sometimes be fuzzy. But that doesn't mean that there aren't cases that clearly fall on one side or the other. Seizing someone's property and holding it for months (as happened in AmeriSource) is clearly a taking. Since I a more a textualist than an originalist, I think it highly significant that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. All require the payment of "just compensation." Since there were no professional police forces or extensive government evidence-gathering in the 1780s, the Founders may never have been confronted with a situation like that in AmeriSource; as a result we may never be able to discover their specific opinions on the matter (if indeed they had any). However, the text of the Fifth Amendment is more than broad enough to cover these cases. And it is the text, not the subjective intentions of the Framers, which is the law.

Orin also contends that "allowing such claims under the Takings Clause would be quite difficult to administer" because property rights of innocent people are so often "interfered with" during investigations. Part of this concern may be mitigated by the distinction between takings and interference discussed above. However, I don't deny that there will be at least some administrative problems. But the government can mitigate these by establishing a system of administrative compensation that can, in most cases, obviate the need for litigation. As a practical matter, property owners are unlikely to sue for recovery of small losses because of the cost of litigation. Some administrative costs will arise anyway. But that is an inevitable consequence of the enforcement of any constitutional right. For example, as Orin knows better than I, Fourth Amendment enforcement raises all kinds of difficult administrative problems arising from the difficulty of determining whether the police had adequate reasons for searching a particular location at the time they did it.

That said, Orin and I might well agree on the issue of administration more than we disagree. Orin writes:

I tend to agree with Ilya that the government should provide compensation in cases such as that raised by the Federal Circuit case. Plus, a statutory regime could be written to make it much more administrable.

I think that Orin is right on both of these counts. A statutory regime of compensation would be highly desirable and might well be enough to provide adequate compensation to property owners. It could also obviate some of the administrative difficulties of case by case litigation. However, it is unlikely that the government will have any incentive to enact such a scheme unless the judiciary starts enforcing the "just compensation" requirement of the Takings Clause in these cases. If Orin and I are right to believe that the administrative difficulties can be overcome by a statutory or administrative compensation procedure, then judicial enforcement might help facilitate that happy outcome.

Finally, Orin argues that my position - if adopted by the Court - would lead to a narrowing of the exclusionary rule. This aspect of the matter is beyond my expertise, so I can't comment on it intelligently.

Unfortunately, I will be on the road most of tommorrow, so may not be able to continue this debate. However, I may return to it on Saturday if additional points occur to me at that time.

Fearless:

Since I a more a textualist than an originalist


Oh. So you are partially an originalist.

And pray tell, exactly when are you an originalist and when aren't you?
5.2.2008 4:02am
Bill Poser (mail) (www):
I'm having a hard time understanding the court's analysis of the reasonableness issue. I don't know what the standard is here - the court appears to be satisfied with a mere "nexus" between the retention of the drugs and the criminal proceedings - but the government's conduct appears to me to have been unreasonable in at least two respects.

First, the government falsely assured Amerisource and the magistrate's court that it would return the drugs prior to the expiration date when it does not seem that it had a good basis for giving such an assurance.

Second, the government's argument against Amerisource's proposal that the bulk of the drugs be returned with the government retaining a sample for use at trial makes no sense to me. I don't mean that I disagree - I mean that I literally can make no sense of the description of the trial strategy that allegedly required retaining all of the drugs.
5.2.2008 4:08am
Ilya Somin:
And pray tell, exactly when are you an originalist and when aren't you?

As I explained in an earlier post, originalism applies in cases where the text is unclear or ambiguous. In this case, there is no question that the owner's property has been "taken for a public use" by the government (the use of pursuing an investigation), and therefore "Just compensation" is required under the text of the Fifth Amendment. Since the text is not ambiguous on this point, there is no need to advert to originalist analysis because it is the text, not the original intent or meaning that is the law. The latter is only needed in cases where the text is otherwise unclear.
5.2.2008 4:14am
Fearless:

As I explained in an earlier post, originalism applies in cases where the text is unclear or ambiguous.


First, what is not entirely arbitrary about this selective invocation of originalism? Why not revert to textualism only when originalism leads to ambiguous answers?

Second, also, it is possible for originalism to contradict "unambigious" text.

Third, isn't it a very naive view of the English language that asserts that much text does not contain ambiguity?
5.2.2008 4:25am
Ilya Somin:
First, what is not entirely arbitrary about this selective invocation of originalism? Why not revert to textualism only when originalism leads to ambiguous answers?


It's not arbitrary because, as I explained in the post, it is the text which is the law, not the original intent or meaning. Therefore, the latter is only useful to the extent that it helps interpret otherwise unclear meaning of the former.

Second, also, it is possible for originalism to contradict "unambigious" text.

It may be possible. But in such cases, the text should prevail.

Third, isn't it a very naive view of the English language that asserts that much text does not contain ambiguity?


I don't have any strong opinion on the question of how often text is ambiguous. In this particular situation as applied to this particular type of case, I think it's pretty clear.
5.2.2008 4:36am
Fearless:

it is the text which is the law, not the original intent or meaning


And why is it the text that is lAaw rather than the original meaning? Because that is what the Founder intended? If you are going to respect that intent, why not respect their other intents?

Alternatively, is it the text that is law and takes precedence over the original meaning, because you say so?
5.2.2008 4:54am
Fearless:
Why not just admit that your bald assertion that text takes precedence over original meaning is plainly arbitrary and unprincipled. Why not just admit that you made it up.

What is the order?

1.) Text
2.) Original Meaning
3.) Pragmatic considerations (i.e. does it advance libertarianism)

I mean, it is nice that you can order a list. That is one thing. But, justifying your willy nilly mish mash arbitrary sequence of orderings is another.

Basically, in the case of the takings clause, you are saying that the absence of textual limits equals the absence of limits.

There are a couple of problems with that. First, your excessive bitching about the commerce clause suggests that this interpretative move is not applied consistently. I see now limits inherent in the text of the commerce clause. Yet somehow, you are convinced that they are there.

Methinks that the difference is one of will. You want to read the takings clause as broadly as possible, because you believe that will be libertarian enhancing. Thus, you want to read the absence of textual limits as being equivalent to the absence of limits. However, you want the commerce clause to be read more narrowly, because you believe that will be libertarian enhancing. Thus, there you want to read nothing into the absence of textual limits.

Anyway, the view that there is only one way to interpret the absence of something is indeed a naive view of text.
5.2.2008 5:06am
Ilya Somin:
Basically, in the case of the takings clause, you are saying that the absence of textual limits equals the absence of limits.

No, I'm saying that the text is self-limiting. It applies to whatever categories it itself sets out, no more no less.



There are a couple of problems with that. First, your excessive bitching about the commerce clause suggests that this interpretative move is not applied consistently. I see now limits inherent in the text of the commerce clause. Yet somehow, you are convinced that they are there.

I completely agree that the commerce clause gives Congress the power to regulate any and all "commerce...among the several states." My problem is when it starts to use that text to regulate activities that are not interstate commerce but merely "affect" it it in some often extremely minor way.

Methinks that the difference is one of will. You want to read the takings clause as broadly as possible, because you believe that will be libertarian enhancing. Thus, you want to read the absence of textual limits as being equivalent to the absence of limits.

You would be better off addressing arguments rather than addressing my motives. Even if I really did have what you consider as improper motives, that says nothing about the validity of the arguments I make.
5.2.2008 5:17am
Ilya Somin:
Why not just admit that your bald assertion that text takes precedence over original meaning is plainly arbitrary and unprincipled. Why not just admit that you made it up.

Because it is not my original idea. More to the point, my "assertion" is based on the fact that the text is the law, while the original meaning is merely an interpretive aid. Legislatures and constitutional conventions do not enact intentions or meanings, they enact written text, AKA "laws."
5.2.2008 5:19am
ERH:
As for Orin's concern about a narrowing of the exclusionary rule, given the court's recent decisions it appears a narrowing is already under way. Perhaps an expansion of civil liability would actually stem the exclusionary rule's decline.
5.2.2008 8:16am
OrinKerr:
As for Orin's concern about a narrowing of the exclusionary rule, given the court's recent decisions it appears a narrowing is already under way. Perhaps an expansion of civil liability would actually stem the exclusionary rule's decline.

I think that impression is false, but more broadly, I don't see why an expansion of civil liability would actually stem any hypothetical decline.
5.2.2008 8:46am
ERH:
I think that impression is false, but more broadly, I don't see why an expansion of civil liability would actually stem any hypothetical decline.

Prof Kerr, as for the decline of the exclusionary rule, well you're the professor and I'm the student. :) My thinking was that an expansion of civil liability might reinforce the importance of private property rights and therefore violations of such in the form of an illegal search or seizure, would call for the most severe remedy.
5.2.2008 9:02am
David M. Nieporent (www):
There are a couple of problems with that. First, your excessive bitching about the commerce clause suggests that this interpretative move is not applied consistently. I see now limits inherent in the text of the commerce clause. Yet somehow, you are convinced that they are there.
The fact that you don't see something is more of a sign that you're not posting in good faith, any more than when you posted here under any of your previous handles, not a sign that it isn't there. The commerce clause is textually limited to interstate commerce.
5.2.2008 11:45am
Dilan Esper (mail) (www):
I don't know Ilya's views on regulatory takings, but his definition of what constitutes a taking in the search and seizure context seems inconsistent with what most libertarians argue constitutes a regulatory taking.

If the police come to your house and sequester you while they conduct a search, which takes some time, a liberal following current Surpreme Court authority may very well say that isn't a taking, just a temporary regulation. But would a libertarian say that? Isn't the whole point of libertarian thinking about the takings clause that if the government deprives you of some productive use of property for some length of time, it is a taking? If the government has to compensate you for, say, prohibiting you from using your property as a widget factory for 2 years during the permitting process, why does the government not have to compensate you for disallowing you from using your living room to watch the Super Bowl for 4 hours?

I am not saying I have the answer to this-- I don't. But I think one has to adopt a fairly narrow view of regulatory takings to make the move Ilya makes on search and seizure.
5.2.2008 4:59pm
Kirk:
David N.,

Regarding "Fearless"--what were his previous handles, and, perhaps more importantly, how did you find out?
5.2.2008 5:46pm