Property Rights and Liberty Interests
The Fifth and Fourteenth Amendments prohibit government from “taking” private property for a public purpose with payment of just compensation, i.e., the fair market value. The Constitution’s taking clauses protect against government impairment of reasonable investment expectations. Oppressive regulation may constitute compensable takings, for example, price ceilings that deny a reasonable return on investment. Government activities may also constitute a takings by “inverse condemnation,” for instance, chronic flying of government planes over private property that destroys or substantially diminishes its value. And government may take property by eminent domain and litigate over its fair market value. The United States Supreme Court held in the controversial Kelo decision that government may take private property to promote economic development through its transfer to a private business. Many States have reacted to Kelo with statutes that expressly prohibit government takings to stimulate the economy by favoring business investors.
Bruce Fein commands expertise in the Supreme Court’s “takings jurisprudence,” and has been involved in the litigation of eminent domain issues.
The Fifth and Fourteenth Amendments also protect against deprivations of property or liberty without due process of law, i.e., notice and an opportunity to be heard within a reasonable time before an impartial judge. Professional or business licenses are a type of property protected by the Constitution. Mr. Fein has litigated cases concerning the revocation of professional licenses or the imposition of professional discipline without due process.
The Constitution also prohibits States from impairing the obligation of contracts, including public contracts. The escalating costs of state or local pension or health benefit plans for public employees have recently provoked many governments to diminish these payments to retirees and incumbents, which raise serious constitutional questions as to compliance with the Constitution’s Contract Clause. In addition, public employees generally may not be discharged or severely demoted without due process of law.