Here’s another amici brief (on behalf of the Virginia Institute for Public Policy, and Owners’ Counsel of America, authored by takings/SCOTUS superstar Michael Berger) supporting the cert petition we filed last month which asks the U.S. Supreme Court to review a decision of the Mississippi Supreme Court. Here’s the amicus brief which Pacific Legal Foundation filed earlier.
This post has the background on the case and issues.
The VIPP/OCA brief argues:
1. It is important for the Court to reassert the primacy of federal law as determining the baseline protection provided to private property owners by the 5th and 14th Amendments. Although the issue should not be at large, a number of courts — as exemplified by the Mississippi Supreme Court — are seeking to secure for themselves the right and the power to redefine property in such a way as to confiscate private property for the use of the state.
2. This Court cannot permit state courts and legislatures to poach the power to redefine and thereby confiscate private property. Fundamental precepts of this Court’s jurisprudence stand in the way. They are not called into play often, because few states have had the effrontery to seek to invade the federal prerogative, but the record below shows enough encroachment to warrant this Court’s intervention as guardian of the 5th Amendment.
3. Indeed, this Court has plainly stated the precept at the heart of this case: “[A] State, by ipse dixit, may not transform private property into public property without compensation . . . . This is the very kind of thing that the Taking Clause of the Fifth Amendment was meant to prevent. That Clause stands as a shield against the arbitrary use of governmental power.” (Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 [1980].) The Mississippi decision runs afoul of this Court’s authority.
Br. at 3. More coming, so stay tuned.