Revised and corrected (11:00 AM): Last Friday (May 15, 2020), Professor Ilya Somin and I debated whether coronavirus lockdown orders are “takings” under the Constitution. We are still waiting on the Federalist Society to post an audio recording of our virtual panel; in the meantime, I will share some of my thoughts about our exchange. First off, I have to confess at the outset that I was very nervous, terrified even, in the days leading up to the panel. Professor Somin literally wrote the book on the takings clause. Furthermore, he is not only a leading expert on takings law; he is also an accomplished and eloquent speaker. As a result, in the face of such a formidable scholarly opponent, I decided to return to first principles and make a “natural law” argument, or to paraphrase the late great Robert Nozick (pictured below, bottom right), one of my intellectual heroes: individuals–even non-essential ones–have rights!
Here is a brief recap. After dedicating my talk to Shelley Luther (pictured below, bottom left) of Dallas, Texas, who was thrown in jail for opening her small business in defiance of a court order, I immediately took the position that this issue is too important to leave to the courts. That is, instead of waiting for the courts to decide the legal ramifications of coronavirus lockdown orders under the Takings Clause, government officials should just “do the right thing” by unilaterally declaring these orders to be takings and by agreeing, in principle, to pay just compensation to affected business firms. Lastly, I also argued that these lockdown orders are the equivalent of a physical invasion or ouster of property rights under the takings framework established in Lingle v. Chevron, since many State and local governments are using their coercive powers, including the imposition of severe fines and even jail time, in order to enforce these orders. (Cf. the case of Shelley Luther.)
Without the benefit of the recording, I would sum up Professor Somin’s position in four words: “police power” and “Penn Central.” Although not all police power measures are automatically exempt from takings liability, those measures where the activity or property targeted is itself a threat to public health (as opposed to seized or destroyed in order to counter some external danger) are usually exempt from such liability. Furthermore, even if a potential takings plaintiff could get around the police power issue, the multi-factored Penn Central framework would most likely sink most coronavirus shutdown claims (a framework that applies to all temporary takings even if the police power exemption does not).
In addition to Somin’s police power and Penn Central points, he also posed an important practical objection, which I suspect is the real reason he thinks courts will not apply the takings clause to coronavirus lockdown orders. Simply put, applying the takings clause to such orders would be an administrative and logistical nightmare. In other words, my natural rights approach would open the “floodgates” of takings litigation–there would be too many claims for the courts to handle, and it would be extremely difficult for the courts to assign a monetary value to each of these claims.
For my part, I responded to Somin’s powerful police power argument by going back to the Federalist Papers and to our constitutional first principles. Under the timeless natural rights logic of our Constitution, all public laws, even emergency ones enacted under the police power, are subject to limits, and one of these limits is the Takings Clause. What about Somin’s logistical or practical point? I had to concede that applying the takings clause to lockdown orders would entail enormous administrative costs, but nevertheless, citing the BP Claims Facility and 9/11 Victims Compensation Fund, I also emphasized that these costs are not insurmountable. To sum up, then: my position is that our State Governors should “man up” for once and do what they were elected to do–uphold the Constitution by unilaterally declaring their lockdown orders to be takings. Yes, this approach could open the floodgates of litigation, but I am confident in the ability of lawmakers in different States to figure out the logistical details later.
Lastly, I should also mention the moderator of our virtual panel, the excellent Robert Thomas, and several members of the audience posed a number of excellent questions regarding the legal and constitutional status of these coronavirus lockdown orders. If I can find my notes, I will restate these questions, as well as my tentative replies, in my next post.