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.