Thus has the Supreme Court resolved the Catch-22, determined whose baby it was and cut the Gordian Knot. What does it mean? For that, I suggest turning to the concurring opinion by one of my heroes (and perhaps the best Supreme Court justice of the last century), Clarence Thomas, who writes with great clarity.

The Fifth Amendment’s Takings Clause prohibits the government from “tak[ing]” private property “without just compensation.” The Court correctly interprets this text by holding that a violation of this Clause occurs as soon as the government takes property without paying for it.

The United States, by contrast, urges us not to enforce the Takings Clause as written. It worries that requiring payment to accompany a taking would allow courts to enjoin or invalidate broad regulatory programs “merely”because the program takes property without paying for it.

According to the United States, “there is a ‘nearly infinite variety of ways in which government actions or regulations can affect property interests,’” and it ought to be good enough that the government “implicitly promises to pay compensation for any taking” if a property owner successfully sues the government in court.

Government officials, the United States contends, should be able to implement regulatory programs “without fear” of injunction or invalidation under the Takings Clause, “even when” the program is so far reaching that the officials “cannot determine whether a taking will occur.”

This “sue me” approach to the Takings Clause is untenable. The Fifth Amendment does not merely provide a damages remedy to a property owner willing to “shoulder the burden of securing compensation” after the government takes property without paying for it. Instead, it makes just compensation a “prerequisite” to the government’s authority to “tak[e] property for public use.”A “purported exercise of the eminent-domain power” is therefore “invalid” unless the government “pays just compensation before or at the time of its taking.” If this requirement makes some regulatory programs “unworkable in practice,” so be it—our role is to enforce the Takings Clause as written.

Of course, as the Court correctly explains, the United States’ concerns about injunctions may be misplaced. Injunctive relief is not available when an adequate remedy exists at law. And even when relief is appropriate for a particular plaintiff, it does not follow that a court may enjoin or invalidate an entire regulatory “program,” by granting relief “beyond the parties to the case.” 

Still, “[w]hen the government repudiates [its] duty” to pay just compensation, its actions “are not only unconstitutional” but may be “tortious as well.”

This is a very illuminating read. Thomas reflects the growing impatience of the Supreme Court with governmental programs and rules that take property without compensation, claiming it’s but reasonable regulation. We see, with the New York fracking moratorium (“at this time”) and the proposed DRBC fracking ban, the worst sort of abuse in this regard. Not only is government proposing to take the bulk of the value in property held by owners (and all of it in the case of mineral rights owners only), but it is doing so on the basis of the crudest and wildest imagination. This decision lays a foundation for that has not previously existed for a takings lawsuit in New York and one against the DRBC if it recklessly enacts a fracking ban.