Manatt Files Amicus Brief in Regulatory Takings Case Before SCOTUS

Manatt Appellate Senior Counsel  filed an amicus brief on behalf of the National Federation of Independent Business (NFIB) Small Business Legal Center, Inc. and Owners Counsel of America supporting Petitioners in a case before the United States Supreme Court about the fundamental legal underpinnings of regulatory takings law. 

The brief, filed in support of several small businesses in Michigan, stems from suits challenging Michigan’s COVID-19 closure orders under the Fifth Amendment’s Takings Clause. After decisions from the Michigan courts in related cases, the challenge was appealed to the Supreme Court to weigh in on the currently confused state of regulatory takings law. 

In the brief, Berger said that the law underlying regulatory takings has been in disarray for years, if not decades. He showed how the Supreme Court’s own decisions in this field are either in conflict with each other or are so vaguely worded that they can be used to uphold almost any regulation that a lower court might want to approve. 

“In the 40-plus years that the courts have been deciding regulatory takings cases, they have failed to come up with a coherent legal standard. The hash that has become regulatory takings law serves no one, and the debris left behind creates only confusion. Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) – the case the Supreme Court calls its “polestar” in this field – is neither law nor helpful. It is no more than an aspirational hope that lower courts will evaluate each case on its own merits. That has allowed courts to do whatever they please. They are tethered to no actual rules or standards.”   

Further, Berger cited previous cases dating back to 1922 in which the good intentions of a governmental entity, however legally or morally necessary, are constitutionally irrelevant. The power, he said, must have an underpinning in the Constitution. That the state professes to be seeking to do good by protecting the populace from COVID-19 is beside the point, Berger showed in the brief. “Determination of a legitimate governmental objective is the first, not the last, step,” he wrote. “The law distinguishes between means and ends, and the means chosen to achieve the objective must survive Constitutional scrutiny the same as the ends.”  

Read the full brief .