U.S. Supreme Court,
Constitutional Law
Aug. 30, 2023
When a taking is legislative or administrative, does it matter?
Two classic Supreme Court cases involved legislative decisions that were enforced during administrative proceedings. Had the Court simply explained that the mode of exaction was not relevant to the takings question, life would have been easier.
Michael M. Berger
Senior Counsel
Manatt, Phelps & Phillips LLP
2049 Century Park East
Los Angeles , CA 90067
Phone: (310) 312-4185
Fax: (310) 996-6968
Email: mmberger@manatt.com
USC Law School
Michael M. Berger is senior counsel at Manatt, Phelps & Phillips LLP, where he is co-chair of the Appellate Practice Group. He has argued four takings cases in the U.S. Supreme Court.
A recurring problem in takings law surfaced recently in the Court of Appeals for the Sixth Circuit’s opinion in Knight v. Metropolitan Government of Nashville & Davidson County, 67 F.4th 816 (6th Cir. 2023). The issue is this: when a government agency imposes a condition on the use of property, does it matter whether the condition was imposed legislatively or administratively? And is there really a significant difference?
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