556
Breyer, J., dissenting
taking occurs "whenever legislation requires one person to use his or her assets for the benefit of another." Id., at 223. The second case basically followed the analysis of the first case. Concrete Pipe, 508 U. S., at 641-647. And both cases rejected the claim of a Takings Clause violation. Id., at 646- 647; Connolly, supra, at 227-228.
The dearth of Takings Clause authority is not surprising, for application of the Takings Clause here bristles with conceptual difficulties. If the Clause applies when the government simply orders A to pay B, why does it not apply when the government simply orders A to pay the government, i. e., when it assesses a tax? Cf. In re Leckie Smokeless Coal Co., 99 F. 3d 573, 583 (CA4 1996) (characterizing "reachback" liability payments as a "tax"), cert. denied, 520 U. S. 1118 (1997); In re Chateaugay Corp., 53 F. 3d 478, 498 (CA2 1995) (same), cert. denied sub nom. LTV Steel Co., Inc. v. Shalala, 516 U. S. 913 (1995). Would that Clause apply to some or to all statutes and rules that "routinely creat[e] burdens for some that directly benefit others"? Connolly, supra, at 223. Regardless, could a court apply the same kind of Takings Clause analysis when violation means the law's invalidation, rather than simply the payment of "compensation?" See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315 (1987) ("[The Takings Clause] is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking").
We need not face these difficulties, however, for there is no need to torture the Takings Clause to fit this case. The question involved—the potential unfairness of retroactive liability—finds a natural home in the Due Process Clause, a Fifth Amendment neighbor. That Clause says that no person shall be "deprive[d] . . . of life, liberty, or property, without due process of law." U. S. Const., Amdt. 14, § 1. It safeguards citizens from arbitrary or irrational legislation.
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