In June 2008, the court ruled for Illinois declaring it “well settled that the takings clause[] . . . appl[ies] only to the state’s exercise of eminent domain and not to the state’s power of taxation.” The court explained that, because the Act “is in no way tied to real property” or any other “identifiable property interest,” an analysis of the Constitution’s Takings Clause was not required. After the Illinois Supreme Court refused, in September 2008, to rehear the case, the casinos sought U.S. Supreme Court review in January 2009.
The Court should hear the case and—given the clear meaning of the Takings Clause of the Fifth Amendment (“[N]or shall private property be taken for public use without just compensation.”), which applies to States through the Fourteenth Amendment, and its own jurisprudence—hold for the casinos. There is no basis for the Illinois court’s rule that “money” is beyond the Takings Clause. Money is property; indeed, the Supreme Court has held that money involves the same set of rights the Constitution attaches to land or personal property, that is, the “right to possess, use and dispose of it.” Thus, a ruling reversing the Illinois court’s misreading of a 1998 Supreme Court decision (in fact, a miscounting of the votes) and its mistaken view that the Takings Clause does not apply to taxation (it does, of course, to require that the tax support the government) will be welcome news, not only in Illinois, but also throughout the land as federal officials search for new revenues.