Check this out. A short online comment at the Yale Journal on Regulation by Judge Thomas Griffith, “A New Test Or Merely A New Name For Some Regulatory Takings?“
The comment addresses the notion that the Supreme Court in Cedar Point shuffled up takings doctrine:
Much of the commentary about the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021), has focused on its implications for labor law. Yet some of the Chief Justice’s language in the majority opinion suggests a substantial reworking of the Court’s approach to “regulatory takings”—an area that the Court has acknowledged to be “a problem of considerable difficulty.” A close read of the opinion, however, suggests that even though Court may have reshuffled the categories it has used in the past to analyze takings claims, the law remains largely unchanged, if not slightly more obscure.
We’re ok with that, since one way to read Cedar Point is that the Court was simply clarifying that the categorical rule isn’t limited to permanent physical occupations, but that temporary physical invasions burden the same fundamental right, and thus are to be analyzed similarly.
But the author takes an interesting — and different — analytical path. Judge Griffith argues that in Cedar Point, the Court Penn Centralized physical invasion categorical takings by “import[ing] a factual balancing test into the per se framework.” Forgive us for not seeing this, but we didn’t see this in our read of the opinions. Where does that conclusion come from, then? The author points to the majority’s reference to the Nollan/Dolan nexus and rough proportionality test:
Instead, the majority noted that because “the government conditions the grant of a benefit such as a permit, license, or registration on allowing access for reasonable health and safety inspections, both the nexus and rough proportionality requirements of the constitutional conditions framework should not be difficult to satisfy.” Id. at 2079. That inquiry should sound familiar. It is essentially a different articulation of the “regulatory taking” balancing test set out in Penn Central. But instead of considering “the economic impact of the regulation on the claimant,” the “extent to which the regulation has interfered with distinct investment-backed expectations,” and the “character of the government action,” Penn Central, 438 U.S. at 123, courts must consider “whether the permit condition bears an ‘essential nexus’ and ‘rough proportionality’ to the impact of the proposed use of the property,” Cedar Point, 141 S. Ct. at 2079.
Interesting. We’ve never viewed the nexus and rough proportionality exaction standards as the same as the ad hoc regulatory takings test in Penn Central. So what do you think of the author’s conclusion that “[i]n that way, the Court imported a factual balancing test into the per se framework. And the seemingly momentous shift from regulatory taking to per se taking may ultimately be nothing more than a re-naming[?]”