By David Baake The Fifth Amendment’s Takings Clause provides that private property shall not be “taken for public use, without just compensation.” For most of American history, the Supreme Court construed this clause narrowly, requiring the government to pay compensation only where it permanently appropriated or destroyed property. During the twentieth century, however, the … [Read more...] about Arkansas Game and Fish Commission v. United States
By David Baake Since the New Deal era, the Supreme Court has interpreted the Spending Clause to permit Congress to use conditional grants to encourage state governments to take action that Congress could not require them to take. In National Federation of Independent Business v. Sebelius, the Supreme Court unexpectedly restricted this power, holding for the first time ever … [Read more...] about Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?
By Blake Hudson Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a consistent … [Read more...] about Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause
By Jared Policicchio After five years of relative quiet, federal property law doctrine is once again the site of renewed controversy. Last Term, the Supreme Court unanimously rejected a Fifth Amendment takings claim alleged to have occurred when Florida took ownership of newly submerged land after a county beach renourishment project. Importantly, the decision marked the … [Read more...] about Comment: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection