Publication Date

2004

Publication Title

Columbia Law Review

Abstract

The tension between the Supreme Court's expansive reading of the Takings Clause and the state's virtually limitless power to tax has been repeatedly noted, but has received little systematic exploration. Although some scholars, most notably Richard Epstein, have used the tension between takings law and taxes to argue against the legitimacy of taxation as it is presently practiced, such an approach has failed to gain a significant following. Instead, the broad legal consensus is that legislatures effectively have unlimited authority to impose tax burdens. Nevertheless, this Article demonstrates that every attempt to formulate a "Reconciling Theory," a theory that would square the prohibition of takings with such a broad tax power, yields a substantial category of Regulatory Taxings: government actions that-though they would likely be deemed takings under current doctrine-cannot be distinguished from taxes under the particular Reconciling Theory being examined. This Article argues that the persistence of the category of Regulatory Taxings demonstrates that present takings doctrine is far too broad to fully reconcile with longstanding constitutional norms governing taxation. Given the overwhelming consensus that existing taxation practices are largely constitutional, Professor Penalver identifies a need for the Supreme Court to adopt a narrower understanding of the Takings Clause. At a minimum, Professor Penalver concludes that any regulation that can easily be translated into a permissible tax should not be deemed a taking in need of compensation. Professor Penalver further asserts that broadly applicable regulations and regulations of fungible property should rarely be treated as takings.

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