Broad Doctrines That Mitigate Against Takings

The existence of war, terrorism, or other international conflict does not suspend the TakingsClause's protection of private property. Heightened judicial deference in regulatory takings cases
International dangers have consistently prompted courts to extend extra deference to responsive government measures when dealing with regulatory takings claims. When dealing in foreign commerce, these decisions say, the possibility of changingworld circumstances and U.S. response thereto make any expectation of government noninterference unreasonable . Deference to government conduct of foreign policy and the President's role as commander in chief / Political question doctrine
Yet another recurring hurdle for the taking plaintiff is judicial deference to the President's constitutional role as representative of the federal government in the field of international relations,and his latitude as commander in chief. Governmentdeclarations and decisions involving national emergencies, war, and foreign relations are often heldto be outside the judicial reach - generally on "political question" grounds. Status of the Property Owner and Location of the Property

The protection extended by the Takings Clause depends first on the legal status of the property'sowner - whether a U.S. citizen, friendly alien, or enemy alien. Court of Federal Claims. In Turneyv. nationals against foreign sovereigns and their assets, courts have universally rejected takingsattacks, though with an occasional caution. In contrast with the freezing of assets, vesting has the United States actually takingownership of the property, so that it may be "held, used, administered, liquidated, sold, or otherwisedealt with" by the U.S. (27) The Supreme Court hascautioned that "this summary power to seize property which is believed to be enemy-owned is rescued from constitutional invalidity under theDue Process and [Takings] Clauses ... only by those provisions of the act which afford a non-enemyclaimant a later judicial hearing as to the propriety of the seizure." (31) Researchreveals no successful takings claims in this area. Several federal agencies now combating terrorism have been on the receiving end of takings claims arising out of non-terrorism-related law enforcement. Physical Takings and Appropriations, Mostly by the Military

Impressing private property into public service
The courts have long regarded physical occupations and outright expropriations as the most serious sort of government interference with property. ,341 U.S. 114 (1951), where a taking was found based on the government's seizure and operation ofcoal mines during World War II, to avert a strike. (36)
Destruction of property in connection with actual battle
Nearer the thick of battle, even the deliberate destruction of private property by the military is usually noncompensable. A well-settled rule is that the wartime destruction of private property bythe United States to prevent its capture by an advancing enemy is not a taking.
Among federal actions dealing with international conflict, wars, and terrorism, direct impingements on private property are common. Besides the obvious ravages of battle, there havehistorically 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 ofaction, 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. Thisreport finds that based on case law to date, Takings Clause limits on federal response to internationalthreats are few, but most certainly do exist - mostly when private property is impressed into militaryservice 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 extendextra deference to responsive government measures when resolving regulatory takings claims. Second, courts say that when dealing in foreign commerce, the possibility of evolving worldcircumstances and U.S. response thereto make any expectation of government noninterferenceunreasonable. Third, the benefit accruing to the property owner from the government action mayoutweigh the harm. And fourth, there is deference to the President's constitutional role asrepresentative 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; andfriendly alien property somewhere in between, depending on whether the alien has "substantialconnections" 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. Inother areas, government frustration of performance under international commercial contracts appearsto have yielded no successful takings claims, while law enforcement, where physical damage resultsfrom the pursuit of criminal suspects or financial damage results from the operation of frontorganizations, has prompted some judicial concerns and a minority of successful takings claims atthe 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 generallyhave prevailed - wartime or not. Examples include military overflights, seizure and operation ofcoal mines during wartime, and requisitioning of private property. But military destruction ofproperty in connection with actual battle, or to thwart an advancing enemy, is not compensable.