Reading the "Public Use" clause

[Volokh, Eugene]

	Mark's point is excellent, but I think that it also cuts another
way:  If Takings Clause decisions focus on who *physically* uses the
property, then this model seems to logically divide government action
into three categories -- (1) takings for the use of the public, (2)
takings for the use of private parties other than the owner, (3) not
takings at all.  If that's so, then while Kaiser Aetna-type takings are
properly called takings, regulatory takings, including the one in Lucas,
*aren't takings at all* and require no compensation, because they don't
lead the property to be physically used by either the government or
other private parties.

	On the other hand, if one concludes that the government can
"use" someone's property without physically using it -- for instance, by
taking advantage of draconian limits on the owner's ability to develop
it, or by taking advantage of the property's now being owned by some
third party to which it was sold after eminent domain -- then the
regulatory takings theory would remain viable, and just compensation
would have to be paid in some such situations.  The Takings Clause would
focus on whether the government is using the property by exercising
power over it for a public benefit, which divides government action into
two categories -- (1) takings for a public benefit and (2) takings for a
mere private benefit.  And category 1 could still include regulatory
takings.

	Eugene


Mark Tushnet writes:

A related question:  Assume that there is a real, non-trivial judicially
enforceable limit on what counts as a public use for takings purposes.
Presumably that same limit has to be applied in cases involving
regulatory takings (there's no textual basis for distinguishing, is
there?).  It seems clear, though, that the "use by the public" idea
can't sensibly be invoked in the regulatory takings context, at least
not in any way that can be connected to such a restriction in the
physical takings context.  What would the analogue be in the regulatory
takings context to a categorical prohibition on "economic development
physical takings"?