What is a Physical Taking

The Supreme Court often says that a “per se” (or “categorical”) rule governs “physical taking” claims under the Taking Clause of the Fifth Amendment to the U.S. Constitution. These statements suggest the government must pay compensation whenever it physically intrudes upon private property, without regard to any other factor or circumstance. However, there are substantial reasons to doubt that a literal per se rule for physical taking claims actually does — or should — exist. In practice, the Court has frequently departed from a per se analysis of physical taking claims, and in some instances the Court has rejected physical taking claims outright. These outcomes are plainly inconsistent with a per se rule. While the Court has suggested the purported per se approach to physical taking cases has a venerable history (“as old as the Republic,” it has said), it is actually a relatively modern invention and lacks strong support in precedent. The per se theory also is impossible to square with the many traditional government physical invasions of private property that have generally not been regarded as implicating the taking issue, including, for example, forfeitures, seizures of distressed financial institutions, or impoundments of dangerous animals or adulterated foods. Finally, the Court has failed to identify persuasive justifications for applying a per se rule in physical taking cases, and some of its reasoning in support of per se analysis is simply incoherent. The serious problems with the Court’s purported per se theory reveal the need to rethink physical takings doctrine. This Article takes up this challenge by first addressing how to distinguish physical taking claims from other types of taking claims. It proposes that physical takings be classified as either appropriations or occupations, with appropriations defined as de jure or de facto government acquisitions of ownership from a prior owner, and occupations defined as government-caused invasions of private property by people or objects. Both types of physical taking claims stand in contrast to taking claims based on restrictions on the use of property, which are generally analyzed under a relatively more forgiving, complex analytic framework. This Article argues that each type of taking claim should be understood as arising from an impairment of a distinctive normative value: in the case of appropriations, the instrumental exploitation of citizens for governmental purposes; in the case of occupations, the impairment of personal privacy; and in the case of restrictions on the use of property, the potentially extreme and unfair redistribution of wealth. Particular government actions may implicate several of these different property-related values with the result that a single government action can potentially support different types of taking claims. However, the values associated with each type of claim are sufficiently distinctive to support different rules for different types of alleged takings. This analysis yields a new approach to physical taking cases that eschews an absolute per se theory but also recognizes that courts should analyze physical taking claims (based on either appropriations or occupations) differently than claims based on use restrictions. Under the proposed approach, courts would evaluate physical taking claims without regard to the economic impact of the government action or the size of the portion of the property affected by the government action. However, courts would evaluate physical taking claims by considering other factors from traditional takings analysis, including the extent of interference with the owner’s reasonable expectations and the purposes of the government action.