Following up on my previous post, the moderator of our panel, the excellent Robert H. Thomas, formulated four thought-provoking questions for the members of our May 15 property rights panel. Here are his questions (edited by yours truly for clarity):
1. Are there degrees of “police power,” and can or should a court be *more* deferential to the government’s claim that it is acting in response to an emergency, than the already-high degree of deference courts already pay to assertions of health, safety, and welfare measures during normal times under the rational or conceivable basis test?
2. I am intrigued by Professor Guerra-Pujol’s assertion that Kelo–the Supreme Court’s controversial ruling that exercises of eminent domain power need only pass a very low bar under the Public Use Clause–actually is a decision supporting a “strong argument for takings clause lockdown compensation.” In one of the citrus canker cases, the Florida Supreme Court agrees with this approach–where it held “that if a regulation creates a public benefit it is more likely that there is a taking.” Are emergency measures done as a public benefit, or as harm prevention? Is there any difference?
3. What is the role of the “wartime” cases such as U.S. v. Caltex Philippines or U.S. v. Pacific Railroad (no compensation for destruction of property to keep it from falling into enemy hands in wartime), and Mitchell v. Harmony, where the Court held that the military may take or commandeer property to prevent it from falling into enemy hands, but compensation can only be avoided if the danger is “immediate and impending and not remote or contingent”? Does this approach get courts into the business of evaluating the need and actual necessity for the emergency measures?
4. Is the takings question–should compensation be provided?; is this property owner bearing more than their fair share of public benefits?–solved by the type of governmental power being asserted (as many courts have concluded)–in other words, the police power versus the eminent domain power?
These are excellent questions. For my part, my tentative global reply is a “Coasean” one: people have rights, but these rights are going to be in reciprocal conflict (e.g. the right to put others at risk versus the right to be free from risk), so if the government is going to use the pretext of an emergency to curtail one set of these rights, then it must provide compensation in exchange for our cooperation. I will elaborate on my Coasean approach to the pandemic in a future blog post.