The blurring of the lines between what constitutes public use for eminent domain and what is considered a proper public welfare objective of the police power means that government purpose can no longer be used to distinguish between the two powers. They have become functionally interchangeable. The Supreme Court's recognition that the two powers are coterminus demands that they be treated not as separate entities, but as "two points on a continuum which is the power of government". The tension between the traditional "correlative view", which sees the two powers as "very different", and the more recent approach, which openly admits that they are interchangeable, has produced what one writer characterized as "doctrinal schizophrenia". That schizophrenia, coupled with the eagerness of some state and local governments to use the police power as a less expensive alternative to eminent domain, has, in turn, produced a judicial crisis: if government has exercised the police power for a condemnatory purpose, i.e., to extract a public use, then Fifth Amendment compensatory, not Fourteenth Amendment equitable, remedies are appropriate.
Barbara J. Savery,
Eminent Domain by Regulation: Developing a Unified Field Theory for the Regulatory Taking, 17 Golden Gate U. L. Rev.