States and cities have closed innumerable firms and ordered their workers and suppliers into idleness in response to the dangers of COVID-19 transmission. A month ago I posted about some legal questions raised as a result:
"Are these takings of property for public use? If so, would the Supreme Court rule that they require just compensation under the Fifth Amendment’s Taking Clause? If not, is there nonetheless a case for some such compensation, such as emergency rescue payments, as rough justice?"
I quoted two liberty‐minded law professors on the subject. Cato adjunct scholar Ilya Somin wrote that on current Supreme Court precedent, which generally refuses to acknowledge most government regulatory action as a taking for Fifth Amendment purposes, courts would probably not award compensation for most shutdown losses. But both Somin and Keith Whittington went on to argue that the state of the law aside, there may be a moral case for compensating those who have been asked to forgo their livelihoods in response to a public safety emergency.
Since then there have been a couple of updates. Earlier this month the Pennsylvania Supreme Court ruled against several businesses that had argued (among several other theories) that being ordered to close was a compensable taking under the U.S. and Pennsylvania constitutions. Three dissenting justices held that the claims deserved more procedural consideration but did not endorse the application of a takings theory. Prof. Somin has more, noting that this outcome is to be expected under the current state of precedent. In recent days, Somin and business law professor F. E. Guerra‐Pujol have had an exchange of views on whether the state of current law is really as discouraging for claimants as Somin believes. (For what it’s worth, I’d side with Somin.)
Read more at https://www.cato.org/blog/are-shutdown-orders-taking-part-two
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