More (or Less) on Lingle
On Monday, I posted this altogether too-long explanation of the Court’s sudden and unanimous (and long overdue) about-face in Lingle, in which it unceremoniously interred the “substantially advances” takings test that Justice Powell had infelicitously coined 25 years ago in Agins.
Today’s Washington Post has a shorter, easier-to-read version of my summary.
And Mark Tushnet has penned the pithiest and most succinct translation of all. Gilda Radner, RIP.
My exegesis thus is rendered largely obsolete — much like the Agins test itself. Nevertheless, anyone wanting to read about how Lingle may affect the fate of the Nollan/Dolan tests as applied to “monetary exactions” — and I know there must be at least a half-dozen of you out there — will still have to turn to the final paragraph of my post, and to the Comments, in which Richard Samp and Scott Ballenger offer some interesting alternative perspectives.
Well, I have finally succumbed to the temptation of commenting on scotusblog. I hope that there are more than half a dozen people interested in Lingle because it may be a critical turning point in constitutional law governing economic regulations. While the government has won the battle against the substantial advancement test under the Takings Clause, it may simply have invited the Court to make the Due Process Clause a real limitation on government action.
For some time, Professor Steven Eagle and Ken Bley have been arguing for a Due Process test with teeth. Obviously, Justice Kennedy believes that the Due Process Clause should have some substance. In the past (particularly in the Eastern Enterprises case), the Chief and Justices O’Connor, Scalia and Thomas have seen the Takings Clause as providing a limitation on economic regulations. But, after the unanimous decision in Lingle, they may all decide to join Justice Kennedy.
Ultimately, the governments may regret their victory in Lingle. If the Due Process Clause is given teeth, it will truly affect each and every piece of legislation. By contrast, the substantial advancement test under the Takings Clause could always be limited to the Takings context. Thus, the long debate in the Lingle briefs and at oral argument about whether Hawaii’s statute actually regulated particular property — as opposed to an economic regulation that generally affects economic relationships.
If a majority does form around Justice Kennedy’s view, that has a much greater chance in the long run to reverse Lochner. Of course, that would be a very good thing for our economic liberties. If that happens, Lingle may be seen as the turning point for the Constitution in exile movement.
Comment by Paul Utrecht — May 28, 2005 @ 11:00 pm