Fees, Expenditures, and the Takings Clause
39 Pages Posted: 26 Jul 2013 Last revised: 1 Sep 2014
Date Written: 2014
The Supreme Court's recent decision in Koontz v. St. Johns River Water Management District extended heightened constitutional scrutiny to monetary exactions. But the Court did not define that term, and, arguably, it could encompass two distinct forms of conditions placed on government issued-permits: First, those that require a permit applicant to pay money to the government (which this essay refers to as a fee), and second those that require a permit applicant to engage in activities that cost money, but do not transfer money to the government (which this essay refers to as an expenditure). Based on the theoretical underpinnings of takings doctrine, and the language of the Koontz decision itself, this essay argues that heightened scrutiny should extend only to fees, and not to expenditures.
Keywords: Regulatory takings, exactions, unconstitutional conditions, Fifth Amendment, Takings Clause, Koontz
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