Stalin’s ghost: survey of lockdown orders

Note: This is my second blog post in a series on “Lockean takings.”

Last year many State governors across the United States promulgated a series of unprecedented and compulsory economic suppression orders–commonly referred to as “lockdown,” “stay-at-home,” or “shelter-in-place” orders–in response to the coronavirus pandemic.[1] In brief, these Stalinesque orders did two things: they required all non-essential businesses to close their doors, and they prohibited the employees of these business firms from leaving their homes to work. Although the definition of “essential” varied with each order, the common goal of these executive orders was to promote social distancing and slow the spread of infection.

By way of example, on March 19, 2020, Gavin Newsom, the Governor of the State of California, issued an open-ended executive order directing all Californians to stay home except to go to an essential job or to shop for essential needs.[2] His unilateral order states that “all individuals living in the State of California [are ordered] to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors ….”[3] By contrast, on April 1, 2020, Ron DeSantis, the Governor of the State of Florida, issued a statewide 30-day state-at-home order.[4] Governor DeSantis’s order, though temporary, was worded as follows: “all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.”[5]

In all, 45 U.S. States enacted such emergency orders.[6] Although these lockdown orders varied widely in their timing and in the types of workers required to stay at home, they shared the same common thread: these emergency orders required certain workers (often defined as “non-essential” or “non-life-sustaining”) from working outside of their homes for a specified time period or until further notice.[7]

Before proceeding any further, I want to mention and clear up two preliminary points. First off, these emergency lockdowns orders were not enacted by a federal agency but rather by State governors and local governments. Originally, however, the constitutional protections in the Bill of Rights, including the takings clause, applied only to the federal government–not to State or local governments.[8] That said, this original understanding of the Bill of Rights changed almost overnight after the Civil War (1861-65) and the enactment and ratification of the Fourteenth Amendment in 1868.[9] Today, most of the provisions of the Bill of Rights, including the Takings Clause, apply to the States.[10]

The second point I wish to clarify is that these emergency lockdowns orders were enacted under each State’s general and inherent “police power” to protect the health, safety, and welfare of its citizens–not through their powers of eminent domain.[11] This distinction between the police power and the power of eminent domain is significant because, historically speaking, the Supreme Court has carved out a police power exception to the takings clause. According to this line of cases, culminating in Miller vs. Schoene, 262 U.S. 272 (1928), the exercise of a State’s police power–the power to protect the health, safety, and welfare of its residents–is generally immune from the takings clause.

Nevertheless, I would respond that the substance of the regulation–not the label chosen by the State–is what should matter.[12] In brief, the question we should care about is not whether a given public measure is a “police power” regulation. The main question is whether these emergency orders constitute a “taking” of “property,” regardless of the label chosen. In my view, the answer to this question is a qualified yes when State or local governments use their powers to prevent workers, especially self-employed workers, from making a living. I will explain why in my next post …

How Photos Became a Weapon in Stalin's Great Purge - HISTORY

[1] For a survey of these orders, see Mervosh, et al., 2020. See also Stern (2020).

[2] See California Executive Order N-84-20.

[3] Ibid. The full text of Governor Newsom’s two-page order is available at URL = https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-COVID-19-HEALTH-ORDER.pdf.

[4] See Florida Executive Order Number 20-91.

[5] Ibid. The full text of Governor DeSantis’s five-page order is available at URL =  https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-91-compressed.pdf.

[6] See generally CDC 2020. See also Mooreland, et al., 2020.

[7] Some of these lockdown orders even included restrictions on travel. See Holden (2020). Several counties in North Carolina and Florida, for example, set up roadblocks to barricade against visitors, unless they had evidence of a home, job, or other necessity inside the county. I thank my colleague Eang Ngov for bringing this draconian measure to my attention.

[8] See Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833) (Marshall, C.J.) (unanimous opinion).

[9] See generally Amar (1998).

[10] The Supreme Court extended the Takings Clause of the Fifth Amendment to the States through the Fourteenth Amendment’s Due Process Clause in Chicago Burlington and Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897).

[11] For a survey of the police power, see Willrich (2011), pp. 300-301.

[12] Stern (2020), for example, identifies the circumstances in which emergency regulations can constitute a taking of business property and proposes a useful theory to distinguish between a State’s exercise of its police power and its eminent domain power.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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