The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The case is Friends of Danny DeVito v. Wolf, handed down yesterday; it deals with several different challenges, but I thought it would be best to blog about them separately. As to the Takings Clause question, the majority held that temporary moratoria on the use of the property to prevent danger to health and safety aren't takings (and thus don't require compensation under the federal or state constitutions):
In Nat'l Amusements Inc. v. Borough of Palmyra (3d Cir. 2013), the Borough of Palmyra ordered closed for five months an open-air flea market … due to safety concerns posed by unexploded munitions left behind when the site had been used as a weapons-testing facility for the United States Army. Relying on the [Supreme Court] holding in Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency (2002), the court of appeals categorically denied that a regulatory taking had occurred requiring the payment of just compensation:
"It is difficult to imagine an act closer to the heartland of a state's traditional police power than abating the danger posed by unexploded artillery shells. Palmyra's emergency action to temporarily close the Market therefore constituted an exercise of its police power that did not require just compensation."
Applying Tahoe-Sierra and Nat'l Amusements Inc. to the present facts, we conclude that Petitioners have not established that a regulatory taking has occurred. The Executive Order results in only a temporary loss of the use of the Petitioners' business premises, and the Governor's reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens, undoubtedly constitutes a classic example of the use of the police power to "protect the lives, health, morals, comfort, and general welfare of the people[.]"
The partial dissent (signed by three of the seven Justices) didn't expressly comment on this, but did mention Tahoe-Sierra in its discussion of the due process challenge:
While the majority repeatedly stresses that [the] closure is temporary, this may in fact not be so for businesses that are unable to endure the associated revenue losses. Additionally, the damage to surviving businesses may be vast. Significantly, moreover, the Supreme Court of the United States has admonished that the impermanent nature of a restriction "should not be given exclusive significance one way or the other" in determining whether it is a proper exercise of police power. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency (2002).
I'm not a Takings Clause expert, but Ilya Somin is, and an expert who generally takes a broad view of the Clause. And when Ilya says something isn't a taking, as he has generally said with regard to the shutdowns, I believe him.