Supreme Court of the United States
In Re Public Law B.089 (Stonewall Inn National Park Act)
Court No. 16–07, 100 M.S.Ct. 116
SancteAmbrosi, J., delivered the opinion of the Court, in which taterdatuba and CincinnatusoftheWest, JJ., joined, BSDDC, J., concurred separately, and the Chief Justice concurred in part and dissented in part, in which AdmiralJones42, J., joined.
Before us stands now a law passed by the United States Congress by which it purports to designate as a landmark a certain property in the State of New York known as the Stonewall Inn. In making such designation, the Congress has determined that the Secretary of the Interior shall join in the administration of the property and that any transfer in the title or management of such property must be approved by the leader of the National Parks Service.
We are now asked to look to both of these determinations and consider whether this law constitutes a taking under the Fifth Amendment, requiring that the United States provide just compensation to the holders of title of the property.
This is not the first time a takings issue has been before this Court. Over the last forty years, this Court has opined on a number of significant situations to determine whether a taking had occurred. Namely, in Penn Central Transportation Co. v. New York City, this Court determined that a State could impose zoning restrictions upon a piece of property without such constituting a taking. 438 U.S. 104 (1978).
In the present case, we again have a parcel in New York. However, it is the federal government, rather than the State, whose action is now at question. And, rather than the limited action being additional construction on the property, we are asked to look at two different restrictions: the requirement of joint administration and the necessity of approval for transfer of title or management.
I. Joint Administration
First, we look at Section 2(d) of Pub.L. B.089, which provides that the Secretary of the Interior shall be partially responsible for the administration of the property in question. In determining whether this requirement constitutes a taking under the Fifth Amendment, there is no required or consistent test in place. However, we have long recognized that the guarantee of the Fifth Amendment is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Id quoting Armstrong v. United States, 364 US 40, 49 (1960). In recognition of the foregoing, we generally look to the character of the action, the economic impact of the regulation, and the degree of interference with investor-backed expectations. See Id. See also Goldblatt v. Hempstead, 369 US 590, 594.
Generally, when this Court has considered takings issues before, it has been in the context of zoning restrictions rather than the inclusion of the government in the actual administration of the property. Even so, this Court recognizes the same general principles as it has in the past with regards to regulation on property. Specifically, we hold now as we have prior that a restriction upon contemplated use of property is not impermissible when the restriction is placed after a reasonable conclusion of the government that such would promote the health, safety, morals, or general welfare. Penn Central v. New York, supra. In addition, this Court has held under certain circumstances that even restrictions on purposes already in use upon the property is permissible. For instance, this Court upheld a State’s right to choose to protect one class of property over another without compensation. See Miller v. Schoene, 276 US 272 (1928).
In the present case, we do not see that joint administration between the Secretary of the Interior and the owners of the property would violate the considerations of this Court. There is nothing within the section directing the Secretary of the Interior to disrupt the activities of the property or to take from the compensation of the property. Since this Court has repeatedly upheld the right to restrict potential future uses, the possibility of such occurring is of no consequence.
Therefore, considering the foregoing, we hold that, so long as the statute is interpreted in a manner that enjoins the Secretary of the Interior from restricting any use of the property already in place or from any participation in the compensation received from such uses, the joint administration of the property alone does not constitute an impermissible taking nor does it require compensation to the owners as a permissible taking.
II. Approval of Transfers
The second issue to which we turn involves Section 2(c) of Pub.L. B.089, which provides that any transfer in the title or the management of the property must be approved by the head of the National Parks Service. As previously discussed herein, we apply certain general principles in determining whether a taking has occurred under the Fifth Amendment.
Unlike the issue of joint administration of the property, the issue of a transfer of title or management does not work to restrict any use of the property, but rather restricts who may use the property in the manner allowed. And it does not do so in the present sense, but in the future sense.
This Court has dealt with a situation somewhat similar before when a municipality conditioned the approval of a permit upon the landowner conveying a part of the property to the municipality for the purposes of constructing a public greenway. Dolan v. City of Tigard, 512 US 374 (1994). In that case, the restriction on conveyance was only partial, but it was also immediate and more restrictive than in the matter at bar. However, in deciding that case, this Court noted multiple considerations that are of use to us here.
In Dolan, the Court created a proportionality test that required the finding of a nexus between the legitimate state interest and the conditions placed on the grant of permit by the city. The Court noted that there must be a rough proportionality between the demands and the impact of the proposed development.
Similarly, in this case, we hold that there must be a rough proportionality between the demand of Congress and the impact of the restriction itself. The demand is precipitated by the government’s interest in promoting the morals and general welfare and, thus, protecting the status quo of the property. Because of this, a nexus between the two is found prima facie; however, we must still consider whether the connection is proportionate.
In order to establish the proportionality of the nexus, as in Dolan, we further hold that Congress must make some individualized determination that the required approval of any successor managers or owners is related, both in nature and extent, to the actual effects of that restriction. Congress, however, never explained why such an approval is necessary to promote the morals or general welfare. The owners and managers of the property have lost their ability to fully participate in the economy and pass on their obligations and rights how they so desire. We fail to see how restricting the right to pass title is sufficiently related to the government’s desire to maintain the status quo, especially considering the joint administration requirements of the law.
This proportionality test sufficiently examines the first of three general considerations we make: the character of the government action. However, we should also look to the economic impact of the restriction and the interference the restriction has on the expectations of investors. In the present instance, the two can be considered together.
There can be no question that, prior to the designation by Congress, those with rights to the property held a right to sell the property or transfer the management thereof to any entity of their choosing, thus availing themselves of the ability to attempt to avoid an economic downturn or to take advantage of possible additional profit. This, by itself, may not be enough of an impact or interference to constitute a taking, but combined with the lack of reasonable relation in the character of the action, we must hold that it is so.
III. Conclusion
On its face, Pub.L. B.089, the Stonewall Inn National Park Act, attempts to do something legislatures have long had an interest in doing: protecting a piece of property of historic importance from significant alteration or, worse, destruction. To this end, Congress named the Secretary of the Interior a joint administrator of the property and provided the leader of the National Parks Service with a right of veto against any transfer of management or ownership of the property.
Had this been a case whereby Congress placed restrictions on future use of the property, placed immediate requirements on a part of the property that would restrict the rights of the owners, or outright established its full authority over the property, there would be no question of the occurrence of a taking. However, in an attempt to be reasonable and to still allow for the economic benefit of the private owners, Congress attempted to pass a law of cooperation. This attempt at cooperation is fairly unique to the takings issue. However, the same principles must still apply.
With our interpretive restrictions in place upon Section 2(d) of the law, we find no issue with the joint administration of the property. However, we find several issues with the restriction in Section 2(c), including the interference with investor-backed expectations, a negative economic impact to the owners of the property, and a lack of reasonable and proportionate relationship of the specific restriction with the purpose of the overall action. As such, we must hold the restriction to be an impermissible taking.
Therefore, because of the foregoing, Section 2(c) is struck from the law and the remainder of the law remains in force as interpreted herein.
It is so ordered.
BSDDC, J., concurring in judgment.
I concur with the Court’s decision today; however, I do wish to explain my own views for why I have signed onto the majorities judgment. Namely, the Stonewall Inn was already designated as a Historic Landmark in 2000. List of National Historic Landmarks By State, National Historic Landmarks Program(June 14, 2016, 12:32 a.m.),https://www.nps.gov/nhl/find/statelists/LIST15.pdf.
As such, the restrictions and requirements of prior approval before us are already imposed upon the owner of the loqus in quo. Benefits for Properties Designated as National Historic Landmarks, National Historic Landmarks Program (June 13, 2016, 11:43 p.m.),https://www.nps.gov/nhl/learn/benefits.htm. Therefore, the additional designation of the Stonewall Inn as a national park seems to be redundant, and yet it is also innocuous as to the owner and operator. That being said, I do agree with the majorities elimination of the restriction on abandonment.
With all of this in mind, I am led to wonder why no party emphasized this to the Court. A cursory glance at the Congressional record reveals that the issue was raised during the Bill’s consideration. Perhaps Congress thought an additional designation was necessary to protect the inn — this does not seem to be true — or perhaps Congress found worth in the symbolism of the bill without considering its merits. It matters not. This law has not imposed any new restrictions, beyond those struck by the majority, upon the Stonewall Inn or its owner, and so no taking has occurred.
On the other hand, if Congress had made this designation out of the blue, without a prior application or approval of the owner, a taking would be much more likely.
But that is not the case before us. If it were, I would be much more persuaded by the dissent’s well reasoned and well written opinion. But as it stands I concur with the majority, and I vote to uphold the law with the exception of the abandonment restriction.
The Chief Justice, joined by AdmiralJones42, J., concurring in part and dissenting in part.
Today the Court upholds a frankly unprecedented level of federal intrusion into private property interests. Its decision in essence erases the Takings Clause, and explodes our Federalism-related jurisprudence into unrecognizability. And while I agree with the Court’s ultimate holding in Part II, supra, namely that section 2(c) of the Stonewall Inn National Park Act exceeds the authority of Congress, I cannot join the Court’s reasoning in arriving at this conclusion.
I therefore must respectfully dissent.
I
The Stonewall Inn National Park Act, Public Law B.089 (hereinafter “the Act”) establishes the Stonewall Inn, located in New York City, as a National Historic Site. While Congress had previously delegated this authority to the Secretary of the Interior, see Historic Sites Act of 1935 (codified at 16 U.S.C. §461 et seq.), any possible separation of powers issues are not before the Court today.
The owners of the Stonewall Inn might well have been thrilled to learn that their property was being designated as such. This is especially so given that Congress allowed them to avoid many of the procedural requirements typically required, such as demonstrating the historical significance of their property to the Secretary of the Interior’s satisfaction, waiting the two to five years that is typically required for approval, or even being nominated for inclusion in the first place. See United States Department of the Interior,Learn about the National Historic Landmarks Program (last accessed June 16, 2016).
But it is not difficult to imagine a pleasant surprise quickly becoming confounding. Does this new designation have any particular requirements? Will it require additional resources and management decision making now that their property is a Historic Site? In short, what must they do to comply with the law governing this new recognition of their property’s place in U.S. history?
Not to worry, declares the 7th Congress, the Secretary of the Interior is now your co-manager. Public Law B. 089, §2(d). Not only that, but should the property owners get cold feet about this new arrangement and wish to divest themselves of the property entirely, Congress has seen fit to protect them from such a decision that they would no doubt regret in the future, by declaring that the owners may not sell what was ostensibly theirs without federal approval. Public Law B. 089, §2(c).
II
The Court addresses these two sections separately. First, in upholding Congress’s decision to change the management structure of the Inn, the Court declares that
[W]e hold now as we have prior that a restriction upon contemplated use of property is not impermissible when the restriction is placed after a reasonable conclusion of the government that such would promote the health, safety, morals, or general welfare.
Citing Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (hereinafter Penn Central). However, this is a misreading of that case.
Penn Central was a challenge to a New York City law, which allowed a city-created Commission to designate certain areas or buildings as “landmarks.” Once a property was so designated, the owners were required to maintain it in good condition, and must have the Commission’s approval before any modifications were made. Recognizing that no specific framework existed for determining when a taking required compensation under the Fifth Amendment, the Court stated that a decision must rest “upon the particular circumstances [in that] case.” Penn Station at 124 (internal quotation marks and citations omitted). The Court went on to uphold the law, finding that on balance the law’s imposition on property rights was small enough not to require compensation under the Fifth Amendment.
The majority’s reliance on Penn Station is misplaced. First, and most importantly, the majority misunderstands the section quoted above. What the Court actually said in Penn Station was that land use restrictions “that destroyed or adversely affected recognized real property interests” would be upheld where “a state tribunal reasonably concluded that ‘the health, safety, morals, or general welfare’ would be promoted.” Penn Station at 127 (emphasis added).
But this Court has never concluded that the federal government has police power, i.e. power to pass laws for “the general welfare.” Indeed, the cases relied upon by the majority (including Penn Station and others), as well as those quoted in Penn Station, all involved state or municipal actions. The Founders clearly intended this, and from the earliest days of the Nation through the present, this Court has rejected the idea of a federal government that may act however it wishes, free of any constraint.
James Madison wrote that “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45. Chief Justice Marshall, writing in 1824, noted that the Constitution “contains an enumeration of powers expressly granted by the people to their government,” and that it was a Constitution “of enumeration, and not of definition, to ascertain the extent of the power.” Gibbons v. Ogden,22 U.S. 1 (1824). Some 150 years later, this Court refused to find that Congress had “a general police power of the sort retained by the States” or “to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local.” United States v. Lopez, 514 U.S. 549, 567–568 (1995).
This is of prime importance, and the majority’s conflation of state and federal actions is a grave error. It completely undermines the concept of federalism that is foundational in our system of government. As it applies here, it allows the federal government to infringe on private, intrastate property interests to a degree that has never before been allowed. It goes against the basic wording of the Constitution; what meaning has the Commerce Clause, if the government may act on economic interests within a state with so few restrictions?
In addition, the majority also fails to consider additional aspects that madePenn Station distinguishable. In that case, property owners had a legal mechanism to challenge their property’s designation as a landmark, both to the Commission and then via court review. The Act contains no such safeguards. Evidently, neither Congress nor the majority is bothered by this, and is willing to allow deprivation “without due process of law.” See U.S. Const., amend V.
It is a truism that the most commonly-understood principles are also often the hardest to explain. I have attempted to set out what should have been obvious, namely that ignoring the distinction between actions by the States and those of the federal government creates a system of government that would be unrecognizable to anyone living in this country prior to the Court’s decision today.
III
As for section 2(c) of the Act, which prohibits the owners of the Stonewall Inn from selling their property without federal approval, the majority holds (correctly, in my view) that this is not permitted.
But I cannot join the majority’s reasoning for doing so. First, the Court again conflates what a state may do with what the federal government may do. The Court cites Dolan v. City of Tigard, 512 US 374 (1994), and applies the balancing test for weighing government in private interests set forth therein. However, as with Penn Station, Dolan involved municipal action, not federal. It is therefore wholly inapt. The majority discusses how “[t]he demand is precipitated by the government’s interest in promoting the morals and general welfare and, thus, protecting the status quo of the property.” Supra. But as I have explained, there is no such federal interest in promoting morals and the general welfare that our Constitution recognizes.
The majority further bases its ruling on the requirement that
Congress must make some individualized determination that the required approval of any successor managers or owners is related, both in nature and extent, to the actual effects of that restriction.
Supra. But this requirement is both empty and apropos of nothing. There is nothing in our jurisprudence on takings (even if it applied to federal actions like this, which it does not) that supports this conclusion. The majority does not give any particular explanation here, but instead seems content to advise Congress on how it may avoid potential Constitutional pitfalls in the future.
I must emphasize this last point. For Congress to make an individualized determination it must simply do so. While clearly a tautology, this statement makes it clear just how meaningless the requirement is. The Court today instructs Congress on how it may avoid Constitutional restrictions on its actions. Congress need only make a determination, that doubtless will take a staffer or two a couple of hours at most, that there is some connection or another that the required approval is related to the “actual effects” of the restriction in question. It is not wholly clear why this test involves approval of a “successor manager or owner,” since that is not actually what §2(c) says (it instead states that the Stonewall Inn may not be sold without approval of the head of the National Park Service). But this is irrelevant, given that the restriction itself is an empty form that Congress may follow to ignore a host of restrictions on its authority.
Conclusion
Many dissenting opinions from Members of this Court over the years have predicted doom and perdition as a result of their authors’ views not being followed. I find myself in this unenviable place today.
I remain genuinely uncertain how the results of the Court’s holding today will play out. It may be hoped that in the future, we will be able to at least keep some of the basic restrictions on the federal government in place, difficult though it may be to see how we will square them with today’s holding. It is unclear at least how we will arrive at consistent Tenth Amendment jurisprudence going forward, or what (if anything) this means for rulings on questions of Federalism in other contexts.
I hope that my fears are misplaced. But regardless of whether that turns out to be the case, I cannot join with the Court’s reasoning today. I agree with one conclusion, namely that §2(c) of the Act oversteps Congress’s authority, even if I cannot agree with the Court’s reasoning for coming to this conclusion. But I absolutely cannot join the other holding that in essence finds a federal police power. This is beyond the pale, and I cannot countenance it. I therefore dissent.
