Penn. S. Ct. Rejects Takings Challenge to Governor's Shutdown Order

Alternative title: It's Always Locked Down in Philadelphia.

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.

Comments

[Brett Bellmore]

"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[.]":

Not disputing that courts have upheld uncompensated takings under the police power. But I find the reasoning rather unpersuasive: Why should why you take something make it not a 'taking"? One should hope every government taking was to promote the lives, health, morals, comfort, or at least general welfare, of the people; On what other basis could any government action be justified?

[Dr. Ed]

I say again, there is a social equalibrium, and the state going this far will lead to violence...

[librarian]

If there is violence, I'm holding you fully responsible...

[Dilan Esper]

Because takings are rooted in the notion of eminent domain, the requisitioning of property for utilization by the public.

When the government is not doing that and is restricting property rights for some other reason, it's really not a taking under the original understanding.

Now, you can argue for activist interpretations of the Takings Clause like Richard Epstein does. But then, we are talking about a policy argument. And is it good policy to require the government to pay a bunch of windfalls to rich property owners in order to protect public safety?

[Brett Bellmore]

Yeah, the "If the government takes the property and uses it, it's a "taking", if the government takes the property, runs it through a trash compactor, and then buries it, it's not a "taking", and no compensation is owed." argument.

This is literal madness, if you understand the POINT of the takings clause.

The idea here is that, when the government does something to advance the general welfare, (And if it's not advancing the general welfare, it isn't supposed to be doing it in the first place!) the cost of it is to be born by the general population. NOT some designated fall guy. The government can't say, "We need a place to build a post office. You! Yes, you! Sucks to be you, we're building it on your land, get out."

Are the lockdowns to advance the general welfare, or not? If not, they shouldn't be happening at all. If yes, the cost of them should be landing on the general population, not designated fall guys.

[Brett Bellmore]

"And is it good policy to require the government to pay a bunch of windfalls to rich property owners in order to protect public safety?"

And, here it is. "Rich" people don't deserve rights. That's what you're really saying here: Succeed financially, and you lose your rights.

[awildseaking]

How is closing a market due to safety not for the public? Govt decisions are public decisions. The public has decided that operating the market is unsafe and to shut it down. The businesses certainly don't benefit from the closure, nor do their customers. Someone unrelated to the economy here considers the potential risk to be of value.

Is it a good idea that the public should bear the cost of their own decisions? I would say so.