Coronavirus

This Business Is Suing the Government Over a Coronavirus Closure Order

"These uncompensated seizures violate the Takings Clause of the Fifth Amendment."

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The Fifth Amendment to the U.S. Constitution requires the government to pay just compensation when it takes private property for a public use. Does that apply when the government orders a business to close its doors indefinitely in order to help prevent the spread of COVID-19? Is the shuttered business entitled to compensation for its troubles?

These are not hypothetical questions. Schulmerich Bells, a small outfit that makes handcrafted handbells and chimes in Hatfield, Pennsylvania, has filed a federal lawsuit challenging the constitutionality of Gov. Thomas Wolf's order indefinitely closing all "non-life-sustaining" businesses during the COVID-19 outbreak. "The Governor has placed the cost of these Orders—issued for the benefit of the public—squarely upon the shoulders of private individuals and their families, and has failed to justly compensate affected parties for these takings undertaken for their benefit to the public," the suit states. "These uncompensated seizures violate the Takings Clause of the Fifth Amendment." The suit seeks the payment of just compensation by the state.

The U.S. Supreme Court has long said that the states may regulate—and even prohibit—certain property uses in the name of public health and safety without triggering the Takings Clause. In Mugler v. Kansas (1887), the Court ruled against a liquor manufacturer whose livelihood was destroyed when the state banned the sale and manufacture of "intoxicating beverages." According to the Court, "a prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit." Such government action "does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests."

Similarly, in Miller v. Schoene (1928), the Supreme Court upheld a Virginia law requiring the destruction of red cedar trees infected with cedar rust if those trees stood within two miles of an apple orchard (cedar rust is highly detrimental to apple trees). "The state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public," the Court said. "It will not do to say that the case is merely one of a conflict of two private interests and that the misfortune of apple growers may not be shifted to cedar owners by ordering the destruction of their property; for it is obvious that there may be, and that here there is, a preponderant public concern in the preservation of the one interest over the other."

In short, if this particular lawsuit is going to succeed, it will have to clear some steep precedential hurdles.

Related: "Police Powers During a Pandemic, Constitutional, but Not Unlimited."

NEXT: "Wuhan COVID-19 Death Toll May Be in the Tens of Thousands"

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  1. In short, if this particular lawsuit is going to succeed, it will have to clear some steep precedential hurdles.

    Pigs will have to sprout wings?

  2. In short, if this particular lawsuit is going to succeed, it will have to clear some steep precedential hurdles.

    Succeed legally, that is. Plenty of libertarians would rightly point out that the government telling you to close your business while throwing money at you isn’t exactly free market or liberty-oriented (or necessarily Constitutional) either.

    Also, there’s a pretty clear argument against the narrow decisions or implications cited voiding the applications of Takings and the case in question. The cases specifically said you can’t use your property to make alcohol or cocktails. Essentially leaving open the ability to do pretty much anything else with these properties. The specific orders in question don’t allow for any other options. Even if they wanted to shutter the business, level any structures, and sell the property, the government has placed an undue burden across the board.

  3. “We’re sorry. You should have tried harder to get on the S.S. Bailout.”

    1. Why didn’t you buy a senator or two? That’ll teach you.

  4. Kelo changed “public use” to “public benefit” so yes.

    1. It’s still unconstitutional no matter what the SCOTUS said.

      We Americans just have to hold them accountable. Civil War 2.0 over this governmental grab for power should do it.

      1. The Inconsequential Malcontent’s Lame Lament,

        performed and perfected by lc1789

        1. The asshole bigot’s proof of assholery, performed here daily by this asshole bigot.

      2. Civil War 2.0 may come, but many strict constitutionalists, and liberatarians, will not be happy to see it happen. Violence may be necessary, but it should be a last resort, not something we lust for. The Jefferson quote (watering the tree of liberty with the blood of tyrants ) is painful to consider. Better in my mind is Franklin’s “never a good war nor a bad peace”.

      3. Too many sheeple.

  5. This is the vanguard. There will be a feeding frenzy of lawsuits about the economic shutdown. Send lawyers, guns, and money.

    1. went home with a waitress the way I always do

      1. How were you to know, she was with the Russians too?

    2. Like so many other things, in the end it will merely create a few more rich lawyers, like the tobacco cases.

  6. I hope they win.

    1. I know who alway wining – sex essen! So try now!

  7. So we can now consider arbitrary executive fiat equal to deliberative legislative action?
    Seems to this citizen that there are significant differences in the types of takings discussed above.

    1. Seriously?

      So, if the legislature does a taking compensation is due.

      If the executive just says ‘fuck it, do what you’re told’ its not?

    2. This is my take too.

      The executive spouting orders is not at all the same as legislative action. It’s kind of the opposite, actually.

  8. Sounds like the survival of the fittest, fittest being government.

  9. GOOD!!!

    Let’s see the Nazgûl wiggle out of this.

    1. So, much as I despise him, re-elect Trump, pray that RBG decides that it is time to give it a rest, and that someone like Mike Lee takes the seat she occupies.

    2. This topic has already been covered at Volokh, and his take is that there is a lot of precedent against the property owners.

      But this may be novel in that it’s governor executive action and not legislative action.

      1. It’s also novel because not just one activity is prohibited, but almost all.

  10. Spoiler Alert: it won’t be considered a taking. Or it will be deemed that there is no standing because the federal government didn’t issue the edict.

  11. “…….handbells and chimes……”?

    I’ll be damned. Good for them.

    1. All we need is for a maker of hand baskets to joint the suit.

    2. Typical big handbell plutocrat, always wanting to skirt the rules!

  12. Well, Mugler vs. Kansas clearly isn’t terribly applicable, as it only forbids one use, not all uses. The current closure order bans all uses – if you can’t use your property for any purpose, that’s pretty clearly a taking.

    Miller vs. Schoene is more interesting, but here we’re clearly weighing two goods against each other in terms of public interest. (The public interest in cedar trees is lower than apple trees, apparently). Which raises the interesting question of how you go about examining the public goods in question in this case – what’s the actual chance of transmission in one business? Given suitable sanitary precautions are taken? What’s the probability an infected person enters the place to start with? What’s the public good of continuing to pay employees and how do you measure that against the small chance of covid transmission in that specific place? Fact-finding would be very interesting, and I’d like to see a specific justification of the government’s position with real numbers attached, not just ‘zomg, covid-19 is scary’.

    1. Well, no, it doesn’t forbid all uses. If you converted your bell-making business to making food or a hospital, then you could re-open. But the market is pretty well saturated for those businesses, as opposed to bells.

  13. “Fact-finding is *hard*!”

    /COVID-Barbie

  14. “a prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit.”

    I mean, are you reading this bullshit?

    A taking for the express purpose of public benefit can not be considered a taking for the express purpose of public benefit.

    This is what multiple years of law school gets you.

    1. The owner of that business is a lawyer and a prominent clinger.

      1. Clingers (and lawyers) are still citizens.

      2. “The owner of that business is a lawyer and a prominent clinger.”

        I’m sure asshole bigots everywhere are thrilled that the government has taken over the economy.
        They’re not assholes for nothing, right asshole?

    2. It says it’s not taking the property. It would be a taking for public use if the state seized the liquor or the whole operation for distribution to or operation by the public, but in this case they just forbade its use for that purpose. The idea was that the owner continued to own the business and could use its assets for some other purpose — which I’m sure the owner did.

  15. This is when attorneys can provide solid benefits for the public at large – suing state and local governments to castrate them…

  16. Any challenge must first assert essentially a due process argument. That the proposed ban on all work is irrational. Can this employer demonstrate that work in his shop would be safe to the employees and customers.

    If he first proves that there can be no health or safety reason, then he could win.

    Under the rational basis test all the court has to do is dream up a health and safety issue and then he loses.

  17. In those cases, the liquor business could do some other business, and the cedar grove could grow some other trees. However, in the present case, it’s a matter of not being allowed to do any business except a narrow class of them, and the market is already saturated for that narrow class. So this looks like a taking where those other actions were not.

    1. The cedar grove owner had his trees literally taken away in the name of “official preference” – that ruling is precedent for tyranny.

  18. So do illegal drug peddlers get to sue for lost profits too?? What about child porn? Let’s get real here – its silly to sue because a business loses money. Every other business requires some adaptation to its environment; they don’t just sue because the environment didn’t fit their business attempt.

    Perhaps the government is over-dictating but the government didn’t take private property for public use….. The idea is just completely twisted and manipulative.

    1. Actually if you get into a business that’s already illegal, you gain profits by its illegality, so you’d have no lost profits to sue over.

    2. Strippers. Definitely strippers should get a government check.

      1. Only if they can pick it up with their labia.

  19. Just have Uncle Sam cut these guys a check. They can even leave it blank. Whatever amount of money you feel wronged by just have it. It makes no difference now.

  20. Well, what they hay! Why not the 5th Amendment.

    We’re already suspending the First Amendment (Freedom of Religion, Freedom of Assembly)

    I don’t see any phrase at the the end of the First Amendment saying “except when …” anymore than I see it at the end of the 2nd, 4th, 5th, etc.

    If there’s an uptick in crime due to corona virus, can they suspend the 2nd as well?

  21. Saat ini dunia tengah dihadapkan dengan situasi yang sulit dalam menghadapi pandemi covid – 19, Kemudian WHO sebagai organisasi kesehatan dunia memberikan saran – saran dalam nenghadapi penyebaran covid-19 kepada setiap negara. ditiap negara mempunyai kemampuan ekonomi, kemampuan tenaga medis dan karaker warga yang berbeda – beda. segara arab saudi membuat kebijakan lockdown negaranya, Mungkin kebijakan ini diambil dari hukum – hukum Islam yang berlaku dinegara raja salman ini. Sebuah riwayat hadis mengatakan “jika terdapat wabah disebuah negara janganlah kamu masuk kedalam nya. Jika sebuah negara sedang dilanda wabah sedanggkan kamu berada didalamnya maka janganlah kamu keluar dari negara itu. Korea selatan menetapkan kebijakan social distancing. Negara korea selatan menggunakan kebijakan ini karena pemerintah merasa sanggup melakukannya, tingkat kedisplinan warga nyang tinggi, dan kesiapan team medis. Kebijakan ini juga yang diambil oleh negara Indonesia. Namun sangat disayangkan sampai saat tulisan ini dibuat program ini belum berhasil menekan angka kasus penyebaran virus korona. ditambah masih kurangnya kesadaran warganya memperburuk situasi, Pemerintah nampaknya belum memahami betul kondisi negaranya, dari segi kesiapan tenaga medisnya pun masih kurang memadai, ini seperti langkah yang ceroboh.
    ditulis oleh : belitung mania

  22. Wow is Reason the special olympics of writing?

    The big difference in the examples cited was that the legislature passed a law.

    We’re not following any law at the moment. I live in PA and Wolf is twisting a law meant to address a natural disaster not an epidemic. there is actually a PA law that addresses epidemics and gives him very limited powers. That is he can’t order businesses closed. He can order them open and make sue they produce goods to help the emergency.

    Wolf weekly comes out from behind the curtain and randomly takes away another freedom.

  23. Also realize that the PA SCOTUS is a bunch of political hacks. They threw away the PA constitution when the Dems took over, they are elected, and decided its OK for the Wizard of OZ (Gov Wolf) to redistrict the state as he pleases.

    Zero chance that this will succeed since it is already OK for the Wizard to do as he pleases.

  24. Finally!
    Somebody pushing back to the government take over of the economy.

  25. Does this mean that Reason magazine want’s the state and national budget to go to 30 trillion? 40 trillion? Biology beats choice every single time. Where a libertarian free act affects others harmfully it becomes negligence. When there is no choice due to negligence, there is no choice. You could make the libertarian case for damages suits against every business contravening the quarantine order by people who catch the disease in the area.
    All the cases cited above are a class where it would be negligent to do the opposite. Even the alcohol one because the brewer had the option to move to Canada. Yes prohibition was doomed to failure but that does not help. Corona virus shut down is working quite well medically.
    Are you saying that capitalism and the free market is so weak that it can’t survive a months emergency holiday? Show us a libertarian solution that does not require the magic summoning of tons of pharmaceuticals. A time machine or perfect testing kit. All factories, pharmaceutical plant etc are running day and night. Massie called for a Manhattan project on the virus weeks after the USA and every other government in the west started one.
    What are the free market tools? A futures or bond market for pandemic risk. We already had this; it’s been screaming warnings for years!
    A trillion dollar stockpile of emergency supplies. How does the free market do that with materials & pharmaceuticals with an expiry date?
    Not trading with dictators. Steven K Bannon and the protectionists have been calling for that for 20 years or more. It’s not free trade if its a dictator at the other end.
    How does liberty deal with a situation where it has no free choice?

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