Takings & Ex Post Facto — Constitutional Law

The county seizes a home for $15,000 in unpaid back taxes. It sells the house for $40,000. It keeps the $25,000 difference. The tax debt is real, the sale is lawful, and the county followed its own statute to the letter. Has it taken anything from the owner?

Yes. The surplus. That $25,000 was the owner's equity, and pocketing it takes property the government had no claim to. Which tells you the shape of this whole topic. The Constitution does not stop the government from taking your property. It attaches two conditions. And a second guardrail stops a legislature from punishing you today for what you lawfully did yesterday.

Here is the route. Part one, the Takings Clause. The three questions in order, physical takings, the two automatic boxes for regulations, the balancing test, exactions, public use, and just compensation. Then part two, ex post facto laws, the three limits that decide the cases, and the due process rule that catches what the clauses miss.

The Fifth Amendment ends with a command. Private property shall not be taken for public use, without just compensation. Notice what it does not say. It does not forbid taking. It attaches two conditions, a public use and payment. It binds the federal government directly and the states through the Fourteenth Amendment.

Work three questions in order. One. Is there a taking of private property? That is the hard part. Two. Is it for a public use? Almost always yes. Three. Has fair market value been paid? And if the answer to one is no, stop. A regulation that is not a taking needs no compensation at all.

One trap belongs right here. If the taking is valid and for a public use, the owner's only remedy is money. A court will not enjoin a legitimate public taking simply because payment is owed.

The clearest takings are physical, and they arrive two ways. In direct condemnation the government formally exercises eminent domain to take title, to build a highway. In inverse condemnation it files no papers, but its actions so invade your property that you sue. A government dam that repeatedly floods your farm.

Three bright lines make a physical intrusion automatic. First, permanent physical occupation. If the government or someone it authorizes permanently occupies even a sliver of your property, that is a taking, however small the space and however great the public benefit. The classic is a law forcing a landlord to let a cable company bolt a box to the building.

Second, appropriating the right to exclude. A regulation granting third parties a right to enter your land, even temporarily and only on certain days. Taking, or not? Taking. The right to exclude is a core stick in the bundle.

Third, keeping more than the debt. Which is our county, selling a $40,000 home to collect $15,000 and pocketing the extra $25,000. It may satisfy the debt out of the property. The surplus is the owner's.

Regulations are trickier. A law that never physically touches your property can still go so far that it effectively takes it. Yet governments regulate property constantly, and almost none of it requires compensation. So courts sort these claims into two automatic boxes and one balancing test.

Box one is the total economic wipeout. A regulation denying the owner all economically beneficial use of the land is a taking, full stop. An ordinance forbidding any construction on a beachfront lot bought to build a home, leaving it essentially worthless.

With one exception. There is no taking if the forbidden use was never part of your title, because background principles of property and nuisance law would have barred it anyway. You never had a right to poison the neighbor's well.

And watch the threshold, because this is where candidates fall. All means all. If the land keeps any meaningful economic use, even far less than the owner hoped for, you leave the automatic box and go to balancing.

Which is where most claims land. The regulation hurts value but does not wipe it out, so courts apply an ad hoc balancing test, commonly called the Penn Central test. No fixed formula. Three factors, weighed together.

One. The economic impact on the owner, though even a steep drop rarely amounts to a taking by itself. Two. How far it interferes with reasonable, investment-backed expectations, meaning what the owner realistically planned and invested in, judged against the regulatory climate they bought into. Three. The character of the action. A physical invasion pushes toward a taking. A general program adjusting the burdens of economic life pushes away.

Two refinements. The parcel as a whole. Courts measure impact against the whole property, not a sliced-off piece, so an owner cannot manufacture a 100% loss by mentally severing the air rights.

And temporary regulations. A development moratorium is not automatically a taking. It runs through the same balancing. But once a regulation is held to be a taking, the government pays for the entire period it was in force.

Now a special rule for exactions, conditions attached to a development permit. Franklin Municipal Code § 12-4 is a clean example. A permit for a new dwelling issues only if the owner dedicates a 10-foot public trail easement or pays a park fee of $18,000.

The government is leveraging its permit power to extract something, so the condition is a taking unless it clears two hurdles. That is the nexus and proportionality test, often called Nollan/Dolan.

Essential nexus. The condition must be logically connected to the harm the development would cause, the very concern that would justify denying the permit outright. Demanding a public beach easement to offset a blocked ocean view fails. Rough proportionality. The condition must be roughly proportional, in nature and extent, to the projected impact. Not a math formula, but more than a guess.

And it reaches further than students expect. It covers demands for money, not just land. It applies whether the permit comes with strings or is denied because the owner refused. And since 2024 it applies even when a legislature or a fee schedule fixes the condition.

Question two, public use, sounds like a real limit and almost never is. Courts read public use to mean public purpose and defer heavily. Rationally related to any conceivable public benefit qualifies, even if the property is then handed to a private developer.

A city may condemn land and give it to private builders under an economic development plan expected to create jobs and tax revenue. That counts. The only real loser is a naked transfer from A to B serving no public purpose. But that is only the federal floor. Most states have restricted eminent domain for private development, so apply a more protective state law if one is supplied.

Question three, just compensation. Fair market value at the time of the taking, at the property's highest and best use. Measured by the owner's loss, not the government's gain, and it excludes sentimental value, lost profits and relocation costs. For a partial taking, add severance damage to the rest.

And if the government takes without paying, the remedy is an inverse condemnation suit, and the owner may go straight to federal court without exhausting state remedies.

Part two, and a different guardrail. The ex post facto clauses sit in Article I. § 9 forbids Congress from passing any ex post facto law, and § 10 forbids the states. Between them, every legislature in the country is barred from enacting retroactive criminal laws.

Ex post facto means after the fact, and such a law is a retroactive criminal law that disadvantages the offender. Four ways. It criminalizes conduct that was legal when done. It aggravates a crime. It increases the punishment after the crime. Or it changes the rules of evidence to allow conviction on less proof than the law then required.

Three limits decide most questions. Criminal only. Retroactive only. Disadvantage required. Take the first. A retroactive civil law, a new tax, a licensing rule, is not ex post facto at all. A retroactive tax that stings. Ex post facto, or not? Not.

The second is easy. The law must reach back to conduct that predates it, so raising penalties only for future crimes is fine. The third does real work. A purely procedural change that does not criminalize old conduct, increase punishment, or strip a defense is not ex post facto.

But the criminal against civil line is the classic trap, because a legislature can label anything. Courts ask two questions. Did the legislature intend a civil, regulatory scheme? And if so, is it nonetheless so punitive in effect that it is punishment in disguise? Sex-offender registration applied to people convicted before the law existed has been upheld as civil regulation.

Work a supplied statute. Franklin Penal Code § 30 gives felony vandalism a mandatory minimum of three years and applies to all such offenses whenever committed. Applied to someone who vandalized in 2025, when the minimum was one year, it increases the punishment for a completed crime. Applied only to 2026 conduct, the identical statute is valid.

Three recurring patterns. Reviving a dead prosecution, by extending a statute of limitations after it has run, is ex post facto. Extending it before it expires is allowed. Second, applying a sentencing guideline in force at sentencing that recommends a higher range than the one at the time of the crime, even where the guidelines are advisory. Third, retroactively canceling good-time credits so a prisoner serves longer.

One gap is left. The clauses bind only legislatures. So what stops a court from reinterpreting a criminal statute to cover conduct nobody thought was illegal, then applying that reading to a past act? Due process does.

Due process bars the retroactive application of an unexpected and indefensible judicial enlargement of a criminal statute. That is the fair warning principle, and the same idea underlies void for vagueness. So, a court expands a crime. Ex post facto, or due process? Due process. Match the clause to the actor.

And know the neighbors. Those same sections ban bills of attainder, legislative punishment of named individuals without a trial. And § 10 separately bars states, and only states, from laws that substantially impair existing contracts.

A word on authorities. This episode named two things that sound like cases, the Penn Central test and Nollan/Dolan, and both are names of tests rather than authorities you must recite. This is an unstarred, recognition topic, so the exam may hand you the governing standard, or a statute, and ask you to apply it.

If you keep only three, keep these. The three questions in order, taking, public use, compensation, because the order ends half the problems early. The three boxes for a regulation, per se physical, per se total wipeout, and balancing. And the three ex post facto questions. Criminal, retroactive, disadvantaging.

Now the traps, straight from the examiners' favorites. One. Injunction against money. A valid public-use taking is not blocked by a court, and the remedy is compensation, not returning the land. Two. All economic use really means all. An answer calling a 90% value drop an automatic taking is wrong.

Three. Public use almost never fails. Do not invalidate a taking because private parties benefit, or because the government could have picked other land. Watch instead for a more protective state statute. Four. Ex post facto is criminal only. A retroactive tax, or a retroactive civil registration scheme, is not ex post facto even when it feels punitive.

Five. Match the clause to the actor. If a court, not a legislature, retroactively expands a crime, the label is due process and fair warning. Six. Exactions are conditions on a permit. Do not run nexus and proportionality against an ordinary zoning limit that applies to everyone. That one goes to balancing.

Time for the quick check, and this one comes straight from the BARGO question bank. A developer owns a tract zoned for a shopping center, worth about 4 million dollars in that use. The state rezones it for low-density residential only, cutting its value to roughly 400,000 dollars. A 90% drop. She can still build and profitably sell several houses there.

She sues, arguing a 90% loss is so severe that the rezoning is automatically a taking. Is she right that it is a per se taking? Option one. No, because the tract retains significant economic use, so the claim goes to the balancing test. Option two. Yes, because a 90% reduction denies her substantially all economic use. Option three. Yes, because the rezoning frustrates her investment-backed expectation of a shopping center. Pause here if you want a moment.

The answer is option one. The per se total-wipeout rule applies only when a regulation denies all economically beneficial use, and all means all. A tract that keeps significant, profitable residential use falls outside the categorical rule, so the claim proceeds under the three factors.

Option two misstates the threshold. Even a steep 90% drop is not automatically a taking. Severe diminution is weighed as one factor. Option three raises a genuine balancing factor, but a lost hope of maximum profit rarely carries a claim by itself. There are thirty plus more questions on this topic alone, each with every option explained like that.

Five things to take away. One. Three questions in order. Is there a taking, is it for a public use, has fair market value been paid. No taking, no compensation. Two. Physical intrusions are automatic. Permanent occupation of any size, a right granted to others to enter, and keeping more than the debt.

Three. For regulations, all economic use means all. Anything less goes to the three factors, measured against the parcel as a whole. Four. Exactions get nexus and rough proportionality, even for money and even when a legislature sets the condition. Five. Ex post facto is criminal, retroactive and disadvantaging, all three. A court doing the same thing is a due process problem.

Which is why our county has to hand back that $25,000. It could collect its taxes out of the house. The equity above the debt was never its to keep. Next time, Religion.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.