Michael B. Kent

Land Use Exactions, Anti-Evasion, and Koontz v. St. Johns River Water Management District

This article considers the U.S. Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District, which extended the application of the Court’s exactions test (known as Nollan/Dollan). The majority of the Court relied heavily on the unconstitutional conditions doctrine, explaining that this doctrine formed the basis not only for the Nollan/Dolan framework but also for the extension of that framework to Koontz’s new factual setting. Led by Justice Kagan, four members of the Court dissented. Although the dissenting Justices seemingly agreed with several of the majority’s propositions, they vigorously opposed the manner in which the majority applied those propositions.Although Koontz might be viewed as just another in a long line of cases that make up the messy jurisprudence of regulatory takings and unconstitutional conditions, the primary thesis of my article is that Koontz in fact provides a key to unlocking the Court’s exactions framework. Relying on my prior work with Brannon Denning, this article posits that both regulatory takings and the doctrine of unconstitutional conditions constitute anti-evasion doctrines by which the Court seeks to fill enforcement gaps left open by its prior constitutional decision rules. Inasmuch as land use exactions lie at the intersection of these two doctrinal areas, one would expect to find that anti-evasion notions play a large role in the Court’s exactions decisions. And indeed, both the majority and the dissent in Koontz invoked the anti-evasion characteristics of the Nollan/Dolan test in support of their analytical positions in that case.Viewing Koontz (and its jurisprudential antecedents) through the prism of anti-evasion helps both to explain the majority’s decision in that case and to bring the differences between the majority and dissent into sharper focus. Additionally, the anti-evasion concept suggests some guidelines for how future exactions issues might be resolved — both at the micro level (dealing with future decision rules that will have to be developed in light of Koontz) and at the macro level (addressing larger questions about the Court’s takings jurisprudence and the place of the exaction cases within it).

ANTI-EVASION DOCTRINES IN CONSTITUTIONAL LAW

Recent constitutional scholarship has focused on how courts — the Supreme Court in particular — “implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision making — strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not to other actors; implementing doctrines can be fashioned as rules or standards; doctrines can over-enforce or under-enforce constitutional commands. In this essay, though, we unsettle this dialectical view of doctrinal design by identifying and describing anti-evasion doctrines (AEDs) in constitutional law: doctrines developed by courts — usually designed as standards, as opposed to rules — that supplement other doctrines (designed as rules) to implement particular constitutional principles.AEDs touch all areas of constitutional law. In addition to being ubiquitous, AEDs have a long pedigree. Early examples appear in famous Marshall Court opinions; thus, they are not some modern innovation. In addition to naming AEDs, describing the forms they take, and the characteristics the forms share, this essay also seeks to describe the benefits and payoffs in constitutional law resulting from AEDs. On the plus side, AEDs are designed to help optimize enforcement of constitutional principles — by addressing “problems with rules,” for example. This gap-filling function comes at a cost, however. Not only does the addition of AEDs tend to increase doctrinal complexity, that complexity can increase decision costs for courts, and dilute the benefits of using rules in the first place. The tradeoffs are almost mirror images of the benefits.We also discuss the implications of AEDs for constitutional doctrine generally. That they seem to be everywhere in constitutional law suggests that doctrinal complexity should be seen as a feature of our system, and not a bug, because it attempts to ensure form will not trump constitutional substance. If a certain amount of complexity is inevitable, then that suggests one should be skeptical about claims that constitutional law could be rationalized by the abandonment of the “formulaic Constitution,” in favor of simple, predictable, and easy to apply rules. In fact, the presence of AEDs furnishes strong evidence for Frederick Schauer’s “convergence hypothesis,” which holds that “when authorized to act in accordance with rules, rule-subjects will tend to convert rules into standards by employing a battery of rule-avoiding devices that serve to soften the hard edges of rules,” and vice-versa. Finally, highlighting the role AEDs play in constitutional doctrine, for good or ill, is another reason to take doctrine, its formation, and application by courts, seriously.

Anti-Anti-Evasion in Constitutional Law

In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their function in optimizing constitutional enforcement is likely worth the costs they impose.But the Court’s use of AEDs is not foreordained. In notable areas of constitutional doctrine, the Court has declined to create AEDs in situations that seemingly invite it to do so. This paper addresses this phenomenon, which we term “anti-anti-evasion,” and seeks to understand why the Court employs AEDs in some contexts but not in others. After furnishing a number of examples of anti-anti-evasion, we identify and evaluate the reasons the Court gives for declining to create AEDs. Because these reasons do not tell the whole story, we also pose a working hypothesis – i.e., the Court will not create AEDs where it believes that the constitutional principle is adequately protected by robust political safeguards, and this occurs primarily in cases involving taxing or spending decisions, including the provision of government-subsidized goods and services. Support for this hypothesis is found in a number of the Court’s AED and anti-anti-evasion decisions, including the much-awaited decision in National Federation of Independent Business v. Sebelius.Apart from academic curiosity, the hypothesis (if correct) has broader implications. First, it helps to demonstrate that the formulation of constitutional doctrine is a type of risk regulation where the Court employs decision rules in an effort to achieve optimal (as opposed to maximal) protections. Second, it expands on earlier work by other scholars that considered possible reasons for why the Court might choose one set of decision rules over another, thereby contributing to the ongoing effort to describe accurately what courts actually do when they decide cases. Third, our hypothesis hopefully will encourage the Justices to be more intentional in selecting among available decision rules, and perhaps more transparent in the reasoning behind the adoption of one set over others. Finally, our hypothesis should prove useful to practicing lawyers in crafting constitutional arguments.