Necessity Exceptions to Takings

86 Pages Posted: 25 Mar 2021 Last revised: 6 Jun 2023

See all articles by Shelley Ross Saxer

Shelley Ross Saxer

Pepperdine University - Rick J. Caruso School of Law

Date Written: 2021


The doctrine of necessity has strong roots in the common law of tort and property going back hundreds of years. In the United States the doctrine has been applied in various situations to negate judicial review of constitutional challenges to government action, most recently in some of the wildfire and flood claims resulting from disasters. But now, the states’ responses to the COVID-19 pandemic have brought one of these necessity doctrines—the public health necessity relying on Jacobson v. Massachusetts—to the forefront as courts across the country review constitutional challenges to state public health measures. With such intense review of Jacobson’s public health necessity in a short timeframe, it appears that the courts, including the Supreme Court, are recognizing that common law emergency exceptions cannot be applied to prevent constitutional review. This development supports the goal of this Article, which is to discourage the use of the necessity doctrine to bypass constitutional scrutiny of asserted rights, particularly as to takings claims under the Fifth Amendment. This Article examines the historical development of the diverse categorical exceptions to takings claims under the Fifth and Fourteenth Amendments and addresses the continued viability of these exceptions following the decision in Pennsylvania Coal v. Mahon. After reviewing four categories of necessity exceptions that include: 1) the doctrine of destruction (general, military, and law enforcement); 2) the public health exception; 3) the nuisance and background principles of property law exception; and 4) the police power exception, this Article concludes that the only doctrinally acceptable categorical defenses to a regulatory taking are the nuisance and background principles of property law exceptions. Nuisance and background principles of state law will determine whether the property owner has a property interest subject to a government taking. If the property owner never had a right to use their property in a manner that constitutes a nuisance or interferes with a public resource, it cannot be taken and does not deserve compensation. Government actions that constitute a taking, but benefit the public as a whole whether by conferring a benefit or preventing a harm, should not burden individual property owners when, under the Armstrong principle, in all fairness and justice, we the public should share in paying for the benefits received.

Keywords: necessity, takings, eminent domain, emergency exceptions, public health exception, law enforcement exception, COVID, Jacobson v. Massachusetts, vaccine, quarantine

Suggested Citation

Saxer, Shelley Ross, Necessity Exceptions to Takings (2021). University of Hawaii Law Review, Vol. 44, Issue 1 (Winter 2022), pp. 60-144, Pepperdine University Legal Studies Research Paper No. 2021/2, Available at SSRN: or

Shelley Ross Saxer (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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