Subtitle: “A rumble in the takings jungle” (by F. E. Guerra-Pujol)

As I mentioned in a previous post, my friend and colleague Ilya Somin and I disagree whether the Takings Clause requires the payment of compensation for coronavirus shutdowns. I say “yes”; he says “no.” First and foremost, Professor Somin points out that U.S. Supreme Court has carved out a police power exception to the Takings Clause. According to this line of cases, culminating in Miller vs. Schoene, the exercise of a State’s police power does not qualify as a “taking” under the Fifth Amendment. This is Prof Somin’s best argument by far, so what is my response to Somin’s initial thrust? How about a parry! (See, for example, the image below.)

To begin with, Miller vs. Schoene was decided in 1928–a bygone era in which the police power was more sparingly used. Furthermore, for every case holding x, it does not take much imagination to find a case holding not x. By way of example, in the more recent case of Arkansas Game & Fish Commission vs. U.S. (a 2012 case), a unanimous Supreme Court narrowed this police power exemption. At best, then, the relation between the police power and the Takings Clause is unclear, but my deeper parry stands: “Not all exercises of the police power are exempt from the requirements of the Takings Clause,” as Somin himself concedes in the fourth paragraph of his essay.

Aside from his police power argument, Prof Somin offers two more substantive legal reasons why the Takings Clause of the Fifth Amendment does not require compensation for coronavirus shutdowns under existing law. I will turn to those arguments in my next two blog posts …

“thrust and parry”