In his latest column for Daily Journal, Manatt Appellate Senior Counsel Michael Berger discussed the issue of directly raising a Fifth Amendment takings claim under the Constitution, and how a recent Fifth Circuit decision strays from nearly four decades of Supreme Court precedent upholding the right to just compensation.
Berger explained how the United States Supreme Court had previously confirmed that the Constitution established the right for an individual to receive compensation for property taken by the government under the Fifth Amendment. “The Fifth Amendment's just compensation guarantee is unlike the other parts of the Bill of Rights in that it does not prohibit government action, but rather establishes a right and then provides a remedy for a certain kind of action,” he wrote. However, the Fifth Circuit ignored this and held that the Fifth Amendment Takings Clause does not provide a right of action for claims against a state, thus reaching a decision that is directly contrary to the Supreme Court. “The Supreme Court should save everyone the time and effort and summarily reverse,” Berger concluded.
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