Federal Responses to International Conflict and Terrorism: Property Rights Issues (CRS Report for Congress)
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| Release Date |
Oct. 6, 2004 |
| Report Number |
RL32629 |
| Report Type |
Report |
| Authors |
Robert Meltz, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
Among federal actions dealing with international conflict, wars, and terrorism, direct
impingements
on private property are common. Besides the obvious ravages of battle, there have historically been
military occupations and requisitions of property not in the actual theater of war. And, non-military
measures may be used against assets, attachments on foreign assets, causes of action, and so on.
Unsurprisingly, holders of affected property interests have claimed that their property was
"taken" and demanded compensation, invoking the Takings Clause of the Fifth Amendment. This
report finds that based on case law to date, Takings Clause limits on federal response to international
threats are few, but most certainly do exist -- mostly when private property is impressed into military
service not in the theater of actual war.
Successful takings claims in the international area, often involving national security, are made
difficult by four principles. First, international dangers have consistently prompted courts to extend
extra deference to responsive government measures when resolving regulatory takings claims.
Second, courts say that when dealing in foreign commerce, the possibility of evolving world
circumstances and U.S. response thereto make any expectation of government noninterference
unreasonable. Third, the benefit accruing to the property owner from the government action may
outweigh the harm. And fourth, there is deference to the President's constitutional role as
representative of the federal government in the field of foreign relations -- often expressed as the
"political question doctrine."
The protection extended by the Takings Clause also depends on the legal status of the property's
owner. The property of U.S. citizens gets the most protection; enemy alien property, none; and
friendly alien property somewhere in between, depending on whether the alien has "substantial
connections" with the United States.
Takings claims against the freezing and vesting of foreign assets have universally been rejected,
though with an occasional judicial caution that an overly protracted freeze might be a taking. In
other areas, government frustration of performance under international commercial contracts appears
to have yielded no successful takings claims, while law enforcement, where physical damage results
from the pursuit of criminal suspects or financial damage results from the operation of front
organizations, has prompted some judicial concerns and a minority of successful takings claims at
the state level.
In sharp contrast with the poor record of takings claims in the above areas, claimants
challenging the impressing of private property into military or related government service generally
have prevailed -- wartime or not. Examples include military overflights, seizure and operation of
coal mines during wartime, and requisitioning of private property. But military destruction of
property in connection with actual battle, or to thwart an advancing enemy, is not compensable.
