George Will on the Empress Casino Takings Case:

George Will has written an op ed on Empress Casino v. Giannoulias, the important takings case in which I and other property scholars coauthored an amicus brief urging the Supreme Court to hear it. As Will points out, the case involves a challenge to a narrowly targeted Illinois tax that transfers money from four riverboat casinoes to several horse-racing tracks. Will correctly points out that this is an egregious example of special interest legislation transferring wealth from one narrow interest group to another without any justifying public interest.

Unfortunately, Will also somewhat misstates the legal point at issue in the case. At this stage of the litigation, it is not whether the taking of the riverboat casino's money is for a valid "public use," but whether there has been any taking at all. The Illinois Supreme Court's opinion in the case ruled that no tax could ever be a taking. If that ruling is allowed to stand, the Illinois tax will not only be permitted, but the casinos won't even receive any compensation for their losses. More importantly, state governments will be able to circumvent the Takings Clause simply by using taxation to force firms or individuals to do whatever the legislatures want with their property - without compensation. For example, if the state passes a law requiring a property owner to use his land in a particular way, there might well be a taking. But under the Illionis court's reasoning, there could never be a taking if the state achieved the same result by requiring the owner to pay a special tax if he refused to use the land in the way the legislature mandates.

The "public use" issue was also litigated at the state court level. But it is not part of the cert petition presented to the Supreme Court. In my view, Will is correct to suggest that if there is a taking, there is no defensible public use here. Indeed, the tax is a particularly blatant example special interest legislation, one that may have been passed in part because of a payoff to notoriously corrupt Illinois Governor Rod Blagojevich. However, as Will also points out, the Court reaffirmed the position that almost any governmental objective counts as a "public use" in Kelo v. City of New London (2005). Like Will, I hope that the Court eventually revisits and overrules Kelo and previous decisions that have essentially gutted the Public Use Clause. But that's not the issue that the Empress cert petition focuses on.

UPDATE: The Cert petition itself is available here. The petition describes the question presented as:

Whether the State’s taking of money from private parties is wholly outside the scope of the Takings Clause.