The Takings Executive Order: Constitutional Jurisprudence or Political Philosophy?

November 1988
Citation:
18
ELR 10474
Issue
11
Author
James M. McElfish Jr.

Editors' Summary: On March 15, 1988, President Reagan signed Executive Order 12630 entitled "Governmental Actions and Interference With Constitutionally Protected Property Rights." In the July issue of ELR, Roger Marzulla, head of the Land and Natural Resource Division of the U.S. Department of Justice, described the genesis of the takings Executive Order and how it might affect environmental regulation. Mr. Marzulla characterized the Order as a logical response to two 1987 regulatory takings decisions by the Supreme Court and concluded that the Order provides a systematic method for agencies to account for the takings implications of their actions without necessarily hindering vigorous enforcement of environmental laws. The authors of the two Dialogues that follow take a different view of the Executive Order. They assert that the Order imposes on federal agencies an expanded view of takings law not warranted by Supreme Court decisions, will not achieve its stated purposes, and will make environmental regulation more difficult.

Mr. McElfish is a Senior Attorney at the Environmental Law Institute.

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The Takings Executive Order: Constitutional Jurisprudence or Political Philosophy?

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