But what really grabs our attention starts on page 35. There, the petition asserts the property owner’s loss in this case is just part of a bigger picture in which the Federal Circuit employs “result-oriented reasoning” in takings cases. Ouch.
The panel’s use of result-oriented reasoning, clearly “a Machiavellian, ends-justifies-the-means process[,]” is unconstitutional because it is beyond debate that “the Constitution … is concerned with means as well as ends.
The exercise of this Court’s Rule 10(a) supervisory power is the only obstacle to the Federal Circuit’s determined dismantling of the guarantees of the Takings Clause.
The most interesting Question Presented asks the Court to review the Federal Circuit’s “but for” requirement — which imposes a causation test that asks whether the damage to the owner’s property would have occurred anyway. In other words, the property owner must show that but for the government’s action, the claimed loss of use or value would not have occurred.
If you want to follow along, stay tuned here or track the Court’s e-docket.
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- New Article: Lawprof Lee Anne Fennell – “Escape Room: Implicit Takings After Cedar Point”