While takings claims are piling up and awaiting courts’ determination, some property scholars have began questioning these claims’ legal ground.9 Relying on the Supreme Court ruling in Penn Central Transportation Co. v. New York City,10 they suggest that coronavirus shutdown claims will not be able to cross the pitfalls posed by the Court in its multi-factored framework to determine whether property regulation should be considered as the exertion of the government’s eminent domain power.11 The Pennsylvania Supreme Court was the first to rule on a coronavirus shutdown claim.12 In Friends of Danny Devito v. Wolf, the Pennsylvania Supreme Court embraced this reasoning to some extent, ruling that because of the COVID-19 regulations’ temporal character, they should be regarded as an exertion of the state police power, rather than its eminent domain power.13 Yet, Chief Justice Saylor’s opinion in Friends of Danny Devito,14 alongside the petitioners’ petition for the Supreme Court for a writ of certiorari,15 suggest that the coronavirus shutdown claims are far from final adjudication. As this article argues, the Penn Central multi-factor framework does not require these claims be rejected. Rather, it is Penn Central’s complicated, though nuanced framework, that allows, and even requires, a thorough examination of these claims by the courts.
Understanding that the coronavirus shutdown claims’ future depends on classifying the COVID-19 regulations as either exertion of the state police power or its eminent domain power, this article suggests a novel theory that aims to provide clear rules for both lawmakers and courts to decide the nature of their action and its consequences. The proposed theory suggests viewing property as a legal institution that is torn between protecting owners’ autonomy and fulfilling community needs. To allow both individuals and communities to flourish, property law should maintain mechanisms to determine what interests prevail in the circumstances of each case. In Penn Central terms, the proposed theory requires analytical inquiry of the characteristics of the case to determine its results. While any such inquiry should begin by recognizing the superiority of owners’ autonomy, it does not account for the supremacy of the owner’s autonomy in any proprietary dispute. To address the pressing needs of our modern society, governments may be required to regulate property to different extents. For that purpose, the theory suggests that the continuum between autonomy and community contains a tipping point, which, if crossed, defeats the presumption of owners’ autonomy in favor of the community’s needs. While crossing the tipping point does not entirely deny a landowner’s autonomy, it nevertheless narrows the scope of ownership, excluding from it the uses or features required to fulfill the community’s needs. The proposed theory suggests that courts could employ two cumulative tests to identify the tipping point: (1) the Generality of Action Test—relating to the scope of application of government action—and (2) the Indispensability Test—relating to the relative essentiality of the community’s needs. While governments should comply with both tests to cross the property tipping point, and to be considered as exerting their police power, the theory includes an interplay mechanism to allow addressing imperfect situations. This interplay suggests that if the government only partially complies with either of the tests, it should strictly comply with the other. The proposed theory, therefore, provides not only normatively coherent rules for lawmakers and courts, but also workable ones.
The proposed theory, therefore, suggests that coronavirus shutdown claims cannot be rejected categorically, but they should trigger an inquiry regarding the circumstances and conditions that led the government to regulate private property. While emergencies do not change the understanding underlying the proposed theory and its mechanisms, they nevertheless may affect the determination regarding the power exerted by the government while regulating property in two ways. First, emergencies may change the location of the tipping point on the property continuum, and therefore expand the zone in which state police power may be exerted; and second, emergencies may relieve the state from paying compensation even when using its eminent domain power, through wider use of the “necessity exception.”16 This understanding allows rethinking about coronavirus shutdown claims, and the government responsibility to compensate owners for their losses.
Reexamining current COVID-19 shutdown regulations through the lense of the proposed theory provides that none justifies viewing the government’s regulation as exceeding its police power. These regulations, despite their harmful effects on owners and businesses, are essential to prevent the spread of the virus and to reduce the rates of morbidity and mortality. Because COVID-19’s characteristics and its health effects are not fully known, and since there is no vaccine or cure available, COVID-19 “stay at home” and social distancing regulations are the only available instrument governments have to combat the spread of the virus. In this sense, the measures taken by most states are not only of high social importance, but they should also be considered as proportional—despite their harmful effects on owners—as no alternative measures are available. While COVID-19 shutdown regulations do not fully comply with the Generality of Action Test’s procedural requirements, this flaw should be remedied by the interplay mechanism. Therefore, though the regulations have significantly affected property owners, they still need to be considered as an exertion of the state police power.
Yet, these are exactly the unique characteristics of the COVID-19 pandemic that deny the government immunity from takings responsibility. Insofar as the regulation will not be sensitive to the situation on the ground, and its extent will not change according to the medical findings, the regulation may violate the Fifth Amendment Takings Clause. The uncertainty surrounding the medical response to the coronavirus, as well as the possibility of finding a vaccine or cure, requires the government to be on the pulse with regard to its interference with private property. The determination that the regulations are proportionate depends to a large extent on their flexibility, and the willingness of the government to adjust their scope to the evolving situation. As the government refrains from adjusting the regulations to the medical situation, there is a risk that the regulations will become disproportionate. In this case, the assertion that the COVID-19 regulations are an exertion of the state police power will be reversed, as the disproportionality of regulations, along with their procedural failures, requires a conclusion that they do not meet the proposed theory requirements. A government failure to respond to changes and to adjust the scope and scale of the regulations to the situation on the ground may trigger its responsibility to compensate owners for their damage.
This article proceeds in five parts. Part I describes the challenges that property and business owners face due to the COVID-19 shutdown regulations. It also reviews the claims filed against the regulations and their implications across the country, focusing on the argument that these regulations constitute uncompensated takings under the Fifth Amendment. Part II provides a detailed review about the muddled regulatory takings jurisprudence and the constant struggle of courts to find clear rules to distinguish between two of the state’s powers: the state police power and its eminent domain power. Part III suggests that the distinction between the state police power and its eminent domain power cannot be determined categorically, but rather requires analytical inquiry regarding the circumstances and conditions of the regulation. In this part I present the theory, according to which the character of the state exerted power depends on the regulation compliance with two cumulative tests: (1) the Generality of Action Test—relating to the scope of application of government action—and (2) the Indispensability Test—relating to the relative essentiality of the community’s needs. This part also suggests that the proposed theory includes an inherent interplay mechanism that allows government to address imperfect situations by allowing partial compliance with one test, while strictly complying with the other. Part IV examines the effects of emergencies, such as the COVID-19 pandemic, on the proposed theory and its determination mechanisms. Part V analyzes current coronavirus shutdown claims according to the proposed theory.
I. COVID-19 and the Property Question
On March 19, 2020, Pennsylvania Governor Tom Wolf issued an Executive Order which closed all businesses deemed to be non-life-sustaining. The Order stated that “[n]o person or entity shall operate a place of business in the Commonwealth that is not a life sustaining business regardless of whether the business is open to members of the public.”17 Four businesses that were classified as non-life-sustaining—according to the North American Industry Classification System, embraced by Governor Wolf—asked the Supreme Court of Pennsylvania for relief from the Order, arguing that it violated several of their constitutional rights.18 One of the petitioners’ prominent arguments was that the Executive Order violated the Fifth Amendment to the United States Constitution because it prohibited them from using their property, and therefore resulted in a taking of private property for public use without the payment of just compensation.19 While the Pennsylvania case was the first to arrive to the court, it is not the only case where property owners are suggesting that the states’ measures to combat the coronavirus violate individual rights. Many of these cases are placing a strong emphasis on the taking of property rights without just compensation. Legal proceedings similar to that of the Pennsylvania lawsuit have already begun in California,20 New York,21 New Jersey,22 Nevada,23 Connecticut,24 Michigan,25 Colorado,26 Florida,27 Illinois,28 and Maryland.29 While most of these legal proceedings focus on the consequences of business shutdowns and the closing of non-essential businesses, some have dealt with other measures that have violated the owners’ property rights. For example, in Florida, beachfront owners have complained that the new regulations preventing beach access deny them from using or even setting foot in their own backyards.30 In New York and New Jersey, property owners challenged measures undertaken by authorities related to owners’ right to raise rents and to evict tenants.31
Though most of these legal proceedings are still underway, the Supreme Court of Pennsylvania has issued a ruling against the petitioners’ taking claim.32 Relying on the United States’ Supreme Court ruling in Tahoe-Sierra v. Tahoe Regional Planning Agency,33 the court concluded that the Executive Order, including the restrictions it imposes on the owners’ property rights, provides a classic realization of the state police power, and therefore does not entitle the owners to compensation.34 The court supported this conclusion by emphasizing the temporality of the harm to property owners on the one hand,35 and on the importance of the Order to protect the lives and health of Pennsylvania citizens on the other.36 The judgment, however, included a dissenting opinion by Chief Justice Saylor, which asserted that denying the petitioners’ claims, without examining their allegations about the inconsistency and irrationality in decisions regarding the restrictions on property, was inappropriate.37 According to Chief Justice Saylor’s dissent, the majority allocated too much weight to the temporariness of the restrictions, and refrained from examining the actual consequences of the Order on businesses and individuals.38 While some businesses may survive the Order’s restrictions, others may not be able to endure the associated revenue losses.39 In rejecting the temporality of the violation as the ultimate variable for deciding whether a property right infringement should be considered a compensable taking or a non-compensable realization of state police power, Chief Justice Saylor also relied on Tahoe-Sierra v. Tahoe Regional Planning Agency, where the Court suggested that “the temporary nature of a land-use restriction . . . should not be given exclusive significance one way or the other.”40
The petitioners in Friends of Danny Devito v. Wolf petitioned the Supreme Court for a writ of certiorari,41 and the other pending cases have not yet been decided. Given the continuing spread of COVID-19, and the anticipation of more outbreaks, it seems that these questions—regarding the injury to property owners due to states’ measures to combat the pandemic—will continue to employ the legal system in the coming months. A global recession and economic difficulties in the markets may lead businesses to bankruptcy or severely impair their ability to recover after the pandemic comes to an end. As the Pennsylvania Supreme Court outlined in Friends of Danny Devito, the question at the core of these proceedings deals with the legal status of the Coronavirus-fight measures, which heavily affects property owners. The courts will have to decide whether these measures—due to their temporality and urgency—constitute the realization of the state’s police power, and therefore do not require the state to compensate property owners, or if there may be situations where these measures will be so harmful to owners’ property rights to be considered as takings, and therefore entitle the owners to compensation. Although the COVID-19 pandemic provides an interesting context for clarifying this question, this same question has previously stood at the center of legal inquiry for centuries. As Part II demonstrates, courts have struggled to find a bright-line rule to distinguish between legitimate exercise of state police power, wherein states can limit landowner autonomy in their property without any form of compensation, and the cases in which compensation is required. The COVID-19 pandemic—and the harmful implications owners may suffer as a result of states’ measures to combat its spread—reinforces the need to find such a bright-line rule.
II. A Tale of Two Powers: The Police Power v. Eminent Domain
Courts have struggled to find a bright-line rule to distinguish between legitimate exercise of state police power, wherein states can limit landowner autonomy in their property without any form of compensation, and the cases in which compensation is required.42 While these powers receive different definitions in both the scholarly literature as well as in courts’ rulings, they nevertheless seem to at least partially overlap. The state police power is usually defined as the sovereign government’s power to regulate and restrict property use to further the public health, safety, and welfare,43 and eminent domain is defined as the taking of private property for public use.44 These similarities led the Supreme Court in Hawaii Housing Authority v. Midkiff to argue that “[t]he ‘public use’ requirement is thus coterminous with the scope of a sovereign’s police powers.”45 Yet, courts preserve the distinction between these two powers, mostly by relieving the government from paying compensation when it exerts its police power, and requiring it to pay compensation when it takes property through using its eminent domain power.46
Several judicial theories were suggested for this purpose, yet three gained most legal attention: (1) the noxious-use theory presented in Commonwealth v. Alger;47 (2) the physical-invasion theory suggested in Mugler v. Kansas;48 and the diminution-of-value theory suggested by Justice Oliver Wendell Holmes in Pennsylvania Coal Co. v. Mahon.49 The complexity and vagueness of these theories, however, still made distinguishing between these two powers difficult. Thus, these three theories have only heightened the tension between the state police power and eminent domain power, and have greatly muddled the current doctrine.50 This section will briefly review each of the three theories suggested in Alger, Mugler, and Mahon, as well as their pitfalls. This review will serve as a foundational platform for the theory later proposed in this article.
In Commonwealth v. Alger, Massachusetts enacted a statute pursuant to the Colony Ordinance of 1647, which limited how far wharves may extend into the Boston Harbor.51 Alger, the defendant, built a wharf that extended beyond that line, but was otherwise within the geographical limits of the Colony Ordinance of 1647 and did not impede or obstruct public navigation. Chief Justice Shaw of the Massachusetts Supreme Court stated that even though the statute’s prohibitions and restraints may diminish the owner’s profits, the owner was not entitled to compensation because the statute was a valid exercise of police power.52 Alger’s dicta survived much longer than its holding; while Chief Justice Shaw’s ultimate ruling in Alger was based on other facts in the case, it was his “noxious use” theory that caught legal scholars’ attention.53 According to Chief Justice Shaw, the government’s prohibition against noxious use of property, though it may diminish the owner’s profits, was not “an appropriation to a public use, so as to entitle the owner to compensation.”54 While the noxious-use theory is appealing because it provides a bright-line rule that courts may easily employ to distinguish between a state’s police power and its eminent domain power, it nevertheless fails to explain how state police power has come to encompass more than the prevention of noxious uses of private property.55 One prominent example of this failure is the Court’s Village of Euclid v. Ambler Realty Co. decision which found that zoning ordinances, regulations, and laws “must find their justification in some aspect of police power” and must be “asserted for the public welfare.”56 The Court’s decision rejected noxious use as the ultimate criteria for recognizing the realization of the state police power.57 This theory therefore fails to provide a rule sufficient to distinguish between the zone of police power and its eminent domain power.
In Mugler v. Kansas,58 the Court was asked to examine the conviction of Peter Mugler, a brewery owner in Salina, Kansas, who had violated a state constitutional amendment that prohibited the manufacture and sale of intoxicating liquors without a permit or license. Mugler had been brewing and selling beer on his property without incident prior to passage of the amendment, so the question before the Court was whether the Kansas Legislature had the power to take from Mugler the use of his property, except for certain limited and specified purposes, without compensation.59 In this sense, Mugler resembles the current COVID-19 complaints, most of which focus on state authority to prevent business owners from operating their businesses.60
Writing for the majority, Justice Harlan suggested two corollary theories. First, he embraced Alger’s noxious-use theory.61 Second, Justice Harlan argued that eminent domain must involve a physical appropriation of property.62 But, the physical appropriation theory fails, as it risks overexpanding the state’s police power. Requiring physical appropriation as a prerequisite for recognizing the realization of the state eminent domain power—and as a result, the state’s obligation to compensate property owners—provides an incentive to significantly depreciate the value of a given property (through, for example, zoning laws), and then buy it at its low market value without having to physically appropriate the property.63 In other words, the physical appropriation theory allows governments to avoid paying compensation, even in cases where compensation is required. This failure makes the physical appropriation theory undesirable, and, as some scholars have concluded, it “should be rejected once and for all.”64
The third and most influential theory that aims to distinguish between the state police power and its eminent domain power was introduced in Pennsylvania Coal Co. v. Mahon.65 In Mahon, the Court addressed the validity of the Kohler Act, which, in relevant part, prohibited certain methods of mining anthracite coal that could cause the subsidence of any structure used for human habitation. The majority opinion, written by Justice Holmes, found that the Kohler Act constituted a taking under the Fifth Amendment.66 According to Justice Holmes, “[t]he general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”67 Holmes’s diminution-of-value theory thus establishes the distinguishing line between police power and takings as a matter of extent.68 According to this theory, government may exercise its police power and diminish “to some extent values incident to property” without implicating the Takings Clause, because otherwise “[g]overnment hardly could go on . . . .”69 However, when the regulation goes “too far” (that is, when the diminution of property value is too extensive), the government should pay compensation to the property owners.
In a way, Justice Holmes’s theory endeavors to address the critique of Justice Harlan’s physical-invasion theory—that the government could avoid paying compensation by achieving its aims without physically appropriating property.70 By focusing on the outcome of government action rather than on the path it chooses, Justice Holmes attempted to preclude government from avoiding payment of compensation for takings. And yet, though this theory provides an answer to the misuse of government power, it carries with it a different set of problems that call into question its capability as the ultimate theory in resolving this ongoing tension. Most of these challenges arise out of the theory’s failure to define when a regulation goes too far. This failure not only hinders courts from fairly and predictably resolving disputes (which leaves landowners feeling less than secure in their property investments71), but it also threatens the government’s ability to carry out public projects. In other words, Justice Holmes’s theory leads to ad hoc decision making, which undermines both legal certainty and government’s commitment to use its powers properly.72
For the reasons explored above, Alger’s noxious-use theory, Mugler’s physical-invasion theory, and Mahon’s diminution-of-value theory all fail to provide a comprehensive and applicable solution to the tension between state police power and its eminent domain power. These theories face challenges that go to the root of this tension, as they are unable to provide lawmakers and courts with clear instruments to continuously and uniformly determine when governments go beyond their legitimate zone of power. In the following Sections, I suggest a theory that aims to dissolve this muddled discourse and to provide clear rules for both lawmakers and courts to decide the nature of their action and its consequences.
III. Taking Police Power Seriously: A Theory for Distinguishing Between Two Governmental Powers
For centuries, American takings jurisprudence has been confused over what governmental power the state exerts when it infringes on owners’ property rights. Courts’ attempted theoretical justifications for the differences between the state police power and its eminent domain power have mostly failed to capture the scope and scale of the cases, as well as the potential implications on both owners and society. Therefore, these justifications are sometimes seen as an attempt to put a patch on a growing wound. They have caused takings jurisprudence—especially in cases where no physical appropriation is involved—to become dull and vague, which decreases legal certainty for all involved parties. This muddy situation, however, does not need to remain the status quo. In this section, I argue that while most of the attempts to solve this puzzle have focused on suggesting divisions between the state police power and its eminent domain power, it would be more practical and normatively coherent to look at these two powers as part of a complete set of relationships between the state, the community, and the property owners. This broad outlook will not only help establish clear rules to identify the nature of the power exerted by the state in a given case, but will also enable this identification to be based on a comprehensive understanding of the right to property and its significance.
A. Property Between Individual Autonomy and Community Needs
To effectively examine the state powers affecting private property, I must first lay the groundwork for a conceptual preview on the right to property and its inherent tension between the individual and the community. Historically, property ownership was considered as a locus of individual autonomy and liberty. Property law scholars view the right to property as an essential part of a person’s capacity to become the author of his own life story.73 As Professor Gregory Alexander argued, “[m]any, if not most, property theorists identify individual autonomy as an important value that property serves.”74 At the same time, property is regulated so that communities can flourish and develop. Indeed, both local and national governments are compelled to interfere with private property to provide public services such as health, education, and mobility to their citizens. When these dual aims of property rights overlap in liberal societies, prevailing legal schemes generally benefit both individuals and the community at large, as they aim to preserve owner autonomy to the greatest extent possible while also promoting efficiency,75 environmental preservation,76 and creativity.77 Yet, there are undoubtedly times when the interests of the owners and those of the community conflict. When the government is required to take private property to fulfill an essential community need—such as a new highway or hospital—the interests of the owners and those of the community clash. In such cases, decisionmakers need instruments to determine whose interests trump—should the owner’s autonomy prevail, or should the project be approved because of the superiority of the community’s need?
Most theories of property law share a quest to establish mechanisms allowing decisionmakers and courts to determine the supremacy of either the owner’s autonomy or community needs in such complicated conflicts that represent the everyday life of our modern society.78 Most of the suggested mechanisms fail to provide a clear and coherent framework. In the following section, I argue that categorizing states’ powers requires a coherent normative infrastructure.
B. The Property Continuum: When Autonomy Trumps Community Needs and Vice Versa
While property law is torn between protecting owners’ autonomy and fulfilling community needs, a mechanism is needed to determine which protection is superior to allow communities and individuals to flourish. In another piece, I suggested that the proper approach is to view the right to property as stretched along a continuum with private property rights and autonomy at one end, and community need at the other.79 I argued that an attempt to determine the conflicting interest of owners and the community should begin by recognizing the superiority of owners’ autonomy, since such recognition corresponds to the essence of the right to private property, and may prevent irreversible mistakes in relation to the individual’s property.80 Yet placing owners’ autonomy as the starting point does not account for the supremacy of the owner’s autonomy in any proprietary dispute. As previously stated, modern society requires both local and national governments to interfere with private property to provide essential services for citizens such as health, education, and mobility.81 To address these needs, I suggested that the continuum between autonomy and community contains a tipping point, which, if crossed, defeats the presumption in favor of the community’s needs. While crossing the tipping point does not entirely deny a landowner’s autonomy, it nevertheless narrows the scope of ownership, excluding from it the uses or features required to fulfill the community’s needs. I suggested that courts could employ two cumulative tests to identify the tipping point: (1) the Generality of Action Test—relating to the scope of application of government action—and (2) the Indispensability Test—relating to the relative essentiality of the community’s needs.82
The Generality of Action Test is designed to achieve several goals, the most important of which is to keep the tipping point inquiry within the rule of law and limiting the arbitrary use of power by the government. One of the major features identified as crucial to the rule of law is generality, or the quest to generate generally applicable rules.83 Generality, therefore, mitigates the danger of an authority’s misuse of power. By applying the Generality of Action Test, one seeks to ensure that authorities’ actions do not target any specific individual or group of individuals because of their political or economic weaknesses. By requiring that property regulations to be general in nature, we reduce concerns about intentional misuse of power toward vulnerable segments in the population. The Generality of Action Test consists of two components—one procedural, the other substantive. The procedural component deals mainly with the process by which the community acts to fulfill its needs. In a sense, it requires authorities to act in accordance with a notion of due process, one that will grant owners and other stakeholders with the ability to resist, understand, and realize the importance of community need. The realization of the procedural aspect should be achieved through citizen participation, including public hearings, to allow owners to present their opposition to the plan. The substantive component, on the other hand, deals more with the scope and scale of the authority’s action. It distinguishes between actions that target specific individual owners (such as denial of permits and exactions), and those that encompass a wider section of owners. Inasmuch as government action is more limited in scope (i.e. by targeting individual property owners), the action may not meet the substantive component of the Generality Test. On the other hand, inasmuch as the action is general in nature (meaning that it targets a wider section of owners), the action should meet the substantive aspect of this test.
The Indispensability Test aims to examine the extent of necessity in imposing restrictions on, or the deprivation of, private property by the community. This test suggests that to overcome the presumption about owners’ autonomy superiority, the government is required to prove that its actions, which infringe on property rights, are indeed required for a vital public need. This test also consist of two components: (1) the importance of the project for community’s prosperity; and (2) the proportionality between the harm caused to the owner and the fulfilment of the community need.84 When the government decides that the community’s needs justify rebutting the presumption regarding owners’ autonomy, it would be required to justify the importance of the need and its contribution to the prosperity of the community. However, only justifying the project, and its importance to the community, is inadequate. The government must also demonstrate that the step it is taking—that is, the action that infringes on the owner’s right to property—is the necessary and proportionate step for the project to be implemented.85
The proposed theory suggests, therefore, that while the right to private property should be under the presumption of the supremacy of the owner’s autonomy, this presumption is rebuttable. What may justify the rebuttal of this presumption are community needs. Yet, for a government to be able to rebut the presumption of owners’ autonomy superiority, it needs to pass both the Generality of Action and the Indispensability Tests. The Generality of Action Test is essential to ensure that the government is not using community needs as an excuse to arbitrarily harm the rights of vulnerable segments in the community. The Indispensability Test is essential to ensure not only that the harm to owners’ property is required to fulfill community needs, but also that it maintains a proportional nexus to the execution of these needs. These two cumulative tests ensure that while governments hold the power to interfere with private property rights, this interference would be restricted to cases where the prosperity of the community depends upon these actions—and even then, that it would be minimal, just to ensure that these specific needs are met. The identification of property’s tipping point, and the tests that the government should pass to legitimize its interference with private property, provide us with a significant instrument to distinguish between the different powers. Specifically, it provides a clear method of distinguishing between the government’s state police power and its eminent domain power.
C. Reconsidering Police Power v. Eminent Domain: Focusing on the How Rather Than on the Why
Governments hold several powers that give them the ability to interfere with their citizens’ rights. Two of these powers—the state police power and its eminent domain power—allow the government to interfere with owners’ private property and to restrict or take the property to fulfill community needs. While the needs justifying each of these powers are defined differently, they nevertheless at least partially overlap. This is why although multiple attempts—by both scholars and courts—to clarify the differences between these state powers have been made, most of them have failed to capture the scope and scale of the cases, as well as the potential implications on both owners and society. In this section I suggest that the theory presented above provides a novel and coherent mechanism to distinguish between these two government powers.
The proposed theory suggests that when the government has succeeded in satisfying both the Generality of Action and the Indispensability Tests, the action should be regarded as within the state’s police power and therefore not a Fifth Amendment taking. If the government fails to pass either of the tests, then the action should be regarded as a taking. This distinction between the state police power and its eminent domain power provides not only a practical mechanism for both lawmakers and courts, but also one that provides a normative justification for the historical distinction between these two powers. As the Supreme Court stated in Midkiff, the state police power and its eminent domain power cannot be distinguished by the properties of the goals for which they are activated.86 The state’s ability to exert its police power and restrict private property to further the public health, safety, and welfare overlaps with its power to take private property for “public use.” Recall that in Alger, the Massachusetts Legislature aimed to limit how far out wharves may extend to prevent public nuisance;87 in Mugler, the Kansas Legislature prohibited the manufacture and sale of intoxicating liquors to preserve the health, morals, or safety of the community;88 and in Mahon, the Pennsylvania Legislature enacted the Kohler Act for safety reasons.89 While the courts concluded that in those cases, the state exerted its police power—and therefore had no obligation to pay compensation to the owners—none of those cases were decided based on the characteristics or the features of the goals for which the property was restricted. In this sense, most, if not all, of these goals may serve as “public use” in the sense that the restricted property would be considered “taken” by the government through its eminent domain power. This understanding sharpens the notion that the distinction between the state police power and eminent domain should not focus on the why, but rather, on the how.
Focusing on the “how” requires understanding that the historical division of the state’s ability to restrict and take private property to two distinct powers, as well as the differences between the state’s legal and economic responsibilities when exerting each power, stems from the nature of the government’s action. The theory presented in this article suggests that the difference between the state police power and its eminent domain power lies in the way the government’s action deals with both the Generality of Action and Indispensability Tests. When the governmental restrictions on private property comply with both tests—meaning that the restrictions imposed on private property comply with the rule of law and are proportional for achieving their ends—the state exerts it police power. When, on the other hand, the government fails to comply with either of these tests, its action should be considered as execution of the state eminent domain power. The distinction between these two powers would thus reflect whether the government succeeded in lifting the burden when it comes to prioritizing community needs over the autonomy of the owners. When the government restricts or takes property while complying with both the Generality of Action and the Indispensability Tests, it succeeds in rebutting the presumption of owners’ autonomy superiority, and is therefore allowed to fulfill the community’s needs without being obligated to compensate the owners. When the government action fails to comply with either of the tests, it fails to rebut the presumption of owners’ autonomy superiority. Yet, partial compliance with one of the tests may still be legitimized by strict compliance with the other test. The proposed theory suggests that the two tests complement each other in that they both aim to safeguard against government misuse of power. Due to the profound harm that government regulation of property may cause to individual autonomy, when one of the tests is only partially realized, the other should be strictly realized. This interplay between the two tests of the proposed theory provides governments with the ability to address imperfect situations, while avoiding spending public funds. It ensures that even when the government regulation of property only partially meets the requirement of either test, it may still be considered as an exertion of the state police power as long as the other test’s requirements are fully and strictly realized.90
When the government fails to comply with either of the tests and the interplay mechanism cannot remedy this failure (for example because neither of the tests were fully realized) its decision to go on with the project requires it to pay compensation to the owners for infringing on their property rights. In such cases, the property regulation should be considered as an exertion of the government eminent domain power. Thus, the proposed theory provides a novel understanding of the distinction between the state police power and its eminent domain power. Restrictions on private property can be considered as the government exertion of either power, regardless of the purpose for which they were imposed. The distinction, therefore, focuses on the character of the action, rather than on its purpose.
Understanding that it is not the why that distinguishes between these two state powers, but rather the how, courts have adopted clear policies regarding two situations: first, when the government physically and permanently intrudes upon private property, courts regard it as the exercise of the government eminent domain power that requires compensation for the owners.91 This determination can be explained by the theory presented in this article, since physical invasion into one’s property generally targets a particular owner, thus failing to meet the Generality of Action Test requirements. According to the proposed theory, when the government goes on with its plans despite its failure to pass either of the tests, it should be regarded as exerting its eminent domain power. On the other hand, when it comes to restrictions on property arising from comprehensive zoning plans, the court considered these as an exertion of the state police power, therefore relieving the government from compensating the owners.92 This determination also accords with the proposed theory as such plans often apply to wide areas with multiple owners. While zoning laws may indeed severely affect some landowners more than others,93 the wide application of these plans usually maintains a reciprocity of advantage, therefore complying with both of the proposed theories’ requirements.
Yet, these are the interim cases that challenge the courts when it comes to identifying the distinction between these two powers. This is the case, for example, with regard to the restrictions that have a significant economic impact on the property value, in the case of exactions and when the government physically intrudes only temporarily on private property. While all these cases may be determined by the proposed theory, I believe that for the purposes of this article, it would be beneficial to focus on solely regulatory takings, which is perhaps the most muddled category of all.
Governmental regulation of private property may have different impacts regarding both property values and the ways that owners may use their property. In some cases, the regulation is minor, in the sense that it may pose insignificant restrictions on the property so that the property value and the scope of potential uses is nearly unaffected. In other cases, government regulation can significantly reduce the property value as well as the ability of the property owner to use it. Courts struggle to find a clear line to distinguish between cases where government regulation would be considered exertion of the state police power, and cases where it would be considered as takings. The general rule embraced by courts to distinguish between these forces was the rule set by Justice Holmes in Mahon, which stated that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”94 Yet, the question remains: what regulation should be considered as going too far to be considered a taking? This question stood at the core of another Supreme Court case, Penn Central Transportation Co. v. New York City, where the owner of Grand Central Terminal claimed that the refusal of New York City Landmarks Preservation Commission to approve construction of 50-story office building over Grand Central Terminal should be recognized as a taking.95 In Penn Central the Court suggested “several factors that have particular significance” when “engaging in these essentially ad hoc, factual inquiries . . . .”96 Specifically, the Court reasoned that such determinations should be based upon examination of (1) “[t]he economic impact of the regulation on the claimant . . . [(2)] the character of the governmental action . . . [and (3) the occurrence of] physical invasion by government . . . .”97
The Penn Central ruling, which aims to dissolve the fog when it comes to distinguishing between the different powers of the state, sets two important assumptions. First, it calls for an analytical inquiry rather than the categorical application of a rule. Second, it sets criteria for determining when the regulation goes too far to be considered as taking. These two assumptions stand at the core of the theory proposed in this article. The proposed theory assumes, similar to the Penn Central Court, that the determination of which power was exerted by the state should result from analytical inquiry. It furthers Penn Central’s criteria for such inquiry, as it takes the Court’s general factors—e.g., the regulation’s economic impact, the actions’ character, and the question of physical invasion—and turns them into applicable and workable tests. The Generality of Action Test incorporates Penn Central’s character of action and physical invasion factors, while the Indispensability Test incorporates the economic impact factor. The application of the proposed theory therefore enhances Penn Central’s assumptions while providing detailed, workable instruments to inquire when regulations affecting private property should be considered as takings. According to the proposed theory, a regulation goes “too far” when the government fails to pass either of the proposed theory tests, and yet decides to go on with the project. In such cases, the regulation should not be considered as exertion of the state police power, but rather as execution of its eminent domain power that entitles the owners to compensation.
The assumption that the determination of the power exerted by the government when regulating property depends on analytical inquiry rather than categorical rule was called into question in Lucas v. South Carolina Coastal Council.98 In Lucas, the question before the Court was whether a state regulation that deprives a property owner of all economically beneficial use of that property should be considered a taking.99 The Court answered this question in the affirmative.100 It concluded that when a state regulation deprives the entire economic value of private property, it constitutes a taking because a “total deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation.”101 Yet, ten years later, the Supreme Court once again reinforced the assumption that the determination regarding the power exerted by the government should be determined by analytical inquiry. In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, Justice Stevens raised the question “whether the concepts of ‘fairness and justice’ that underlie the Takings Clause will be better served by one of these categorical rules or by a Penn Central inquiry into all of the relevant circumstances in particular cases.”102 He concluded that “the Penn Central framework adequately directs the inquiry to the proper considerations.”103 The ratification of the analytical inquiry as the ultimate means of deciding the question of power exerted by the government while it is regulating private property, therefore, reinforces the theory proposed in this article. This theory offers practical tools and applicable tests for both lawmakers and courts to conduct this analytical investigation.
IV. Do Desperate Times Call for Desperate Measures? Emergencies’ Effect on Property Rights Infringement
The proposed theory allows both lawmakers and courts to disperse the legal fog of regulatory takings and to more readily distinguish between cases in which the state exerts its police power and those where it exerts its eminent domain power. Yet, how this theory will work with imperfect situations remains to be seen. Is there a difference between regulations that impose restrictions on private property in routine times and those that restrict it in emergencies? Should lawmakers and courts be required to consider the urgency in imposing the restrictions, the adverse consequences of not imposing them, and the public, social, and environmental costs that may result from delays in property regulation? Should it matter if the restrictions are temporal or permanent? And does the character of the emergency—e.g., environmental, medical, local, or national security—change the determination of which power is being exerted by the government?
While these questions are important because of the current times, when the COVID-19 pandemic is underway, they are more important on a broader scale because they characterize our daily life experiences. Although to different extents, our world nonetheless ranges from one imperfection to another—governments are sometimes required to regulate property faster than usual to address security, safety, environmental, or health emergencies.104 In these cases, the government may find it difficult to maintain the full range of routine procedures when imposing restrictions on property (such as holding a hearing for owners or prior notifications). In other cases, governments may be required to fulfill various social needs, even though their budgets may not allow full compensation for the owners of the affected property.105 Should such imperfections affect the determination regarding the power exerted by the state when regulating property? The theory proposed in this article suggests that emergencies may affect this decision in one of two ways.
The government’s responsibility to address emergencies is not new in American property discourse. It stands at the core of both state police power and its eminent domain power. Public health, safety, and welfare may require the government to regulate private property, to use it, or to destroy it.106 Emergencies may enhance the government’s need to do so in a more rapid and less predictable manner. Yet, American jurisprudence regarding emergencies and their effect on property regulation is somewhat of a puzzle. While in some cases, government actions that significantly affect private property in emergencies were determined to be within the state police power,107 and therefore exempted the state from paying compensation to owners, in other cases, where the damage caused to the property was less significant, courts found that taking occurred and compensation was ordered.108 The government’s obligation to pay compensation to owners further complicated the decision in emergencies, where in some cases the court ruled that although the government exerted its eminent domain power, it was exempt from paying compensation due to the “necessity exception.”109 This puzzle regarding emergencies’ effect on governmental regulation of private property gained several explanations as well as criticism in the literature. Professor Eugene Kontorovich views the Takings Clause mechanism—meaning the establishment of a liability rule in which the government can go on with the confiscation of property in return for compensation—as the ultimate mechanism for states to cope with emergencies.110 Professor Kontorovich, who calls to import the Takings Clause liability rule mechanism to all other constitutional rights, suggests that insisting on property rule-based mechanisms in emergencies will end in courts siding with the government, without the ability to provide relief—even financially—to individuals who suffered constitutional rights violations.111 Professor Brian Lee suggests that the “necessity exception” should not be applied only in cases where the government destroys private property while dealing with an emergency, and that there is no justification to categorically distinguish between the demolition of the property and its use by the government.112 Professor Lee argues that emergencies may require government to interfere with private property in different manners, and that the decision regarding the character of the action as well as the government’s obligation to pay compensation should be determined after identifying the features of necessity.113 According to Professor Lee, not all emergencies are alike, and as a result, a categorical rule regarding government liability cannot be determined both in regard to the obligation to pay compensation and in regard to its scope. Professor Robert Thomas agrees with Professor Lee in that compensation should not be regarded as a zero-sum game.114 In a recent article Professor Thomas provides a comprehensive and insightful review of American jurisprudence regarding emergency regulation of private property, suggesting that historical and current judicial review regarding emergency takings fails to provide clear enough guidelines to determine the compensation issue.115 As Professor Thomas suggests, emergencies should not affect the owners’ entitlement for compensation in cases where their property is occupied, seized or destructed, but the circumstance may affect the evaluation of compensation.116
How does the proposed theory handle emergencies? Generally speaking, the proposed theory embraces the Supreme Court’s insight in Home Building & Loan Association v. Blaisdell,117 which states that emergencies do not and should not affect the powers granted to the government.118 As Blaisdell explains, emergencies are, and almost always have been, part of our life, and therefore, our legal doctrines already take them into account.119 In this sense, emergencies do not change the understanding underlying the proposed theory regarding the tension between owners’ autonomy and community needs or its mechanisms to distinguish between the state powers. However, emergencies may still affect the legal results of the analytical inquiry suggested by the theory in two ways: first, emergencies may change the location of the tipping point on the property continuum, and therefore expand the zone in which state police power may be exerted; and second, emergencies may relieve the state from paying compensation even when using its eminent domain power, through wider use of the “necessity exception.”
Emergencies often force the government to respond quickly to unexpected circumstances. The current COVID-19 pandemic is an example of a medical emergency, but other emergencies may raise out of security, environmental, or economic threats. Under these circumstances, the government lacks the ability to act as in routine times on both a procedural and substantive level. On the one hand, property regulation in routine times may be subject to comprehensive procedural requirements that the government would not be able to follow if required to respond quickly to emergencies. On the other hand, emergencies often sharpen the importance of regulating property to provide for community needs. Additionally, emergencies often affect the proportionality of the government action. Thus, actions that may be conceived as disproportional in routine times may be considered proportional in emergencies due to the urgent need of the government to respond and the potential public harm. Emergencies, in this sense, do not change the understanding underlying the proposed theory or its determination mechanisms, but they may affect, sometimes significantly, the outcome of the inquiry. While any government regulation of property should be examined through the lenses of both the Generality of Action Test and the Indispensability Test to determine the power exerted by the government—and as a result, the owners’ entitlement to compensation—the circumstantial application of these tests may vary depending on the state of emergency and the government’s need to address it through property regulation. The theory’s interplay may tip the scale toward recognizing emergency regulations as exertion of the state police power rather than its eminent domain power. The urgency of crises to address immediate and harmful threats may sharpen the importance of property regulations providing for a community’s most essential needs. It may also affect the proportionality inquiry, as regulation that would be disproportional in routine times may often be considered proportional due to the urgent response required. Government regulation of property in emergencies, therefore, are expected to easily pass the Indispensability test while only partially comply with the Generality of Action Test. In routine times, such partial compliance may result in determining that the government’s decision to go on with the project should be considered as an exertion of its eminent domain power. Emergencies may trigger the theory’s interplay mechanism, resulting in maintaining the government’s activity within its police power.
Another effect that emergencies may have on the proposed theory relates not to the determination of the exerted state power, but rather to the government’s obligation to pay compensation when it exerts it eminent domain power. According to the proposed theory, when the government fails to pass either of the it’s tests, and when the interplay does not cure this failure, the government should recognize the superiority of the owners’ autonomy over community needs. In such a case, the government cannot exert the state police power, but can still exert its eminent domain power, in which it becomes liable to compensate the owners. This is, according to the proposed theory, the essence of the eminent domain power: the power granted to the government to take property in cases that exceeds its police power, in return for compensating the owners. Emergencies do not change the government liability in this regard. However, they may invoke the “necessity exception”—a tort-like legal defense—that will relieve the government from paying compensation despite its liability. The “necessity exception” is well rooted in American eminent domain jurisprudence, as it exempts the government from paying compensation to owners in cases where the government destroys private property to address emergency.120 While the scope and scale of the “necessity exception” is currently limited only to cases in which the government destroys private property, some argue that it should be expanded also to cases where the government regulates private property to address emergencies.121 Taking “necessity” seriously means that there should be no distinction between property destruction or property regulation, as they both aim to urgently prevent significant public harm.
Emergencies therefore do not change the powers exerted by governments to regulate private property. Yet, they often provide circumstantial changes that may affect both the analytical inquiry that the proposed theory suggests and the application of the “necessity exception” that exempts the government from paying compensation even if a taking occurs. The next section investigates how current COVID-19 complaints should be determined according to the proposed theory.
V. COVID-19 Complaints Reconsidered
Business owners and private property owners were affected by the COVID-19 regulations in several aspects. Professor Thomas distinguishes between four different types of what he calls “emergency takings”: physical taking of private property, seizure and destruction of property, third party occupation, and government regulation.122 While all four types of emergency takings suggested by Professor Thomas may be analyzed and determined by the proposed theory, it nevertheless is the fourth type—i.e., government regulations that affect owners use of their property—that poses the greatest challenge to the courts in current COVID-19 times. This is true both because the muddled condition of the regulatory takings discourse in general, and because these claims are already awaiting courts’ determination in various states.
Governors and mayors in most states issued executive orders to address COVID-19’s rapid spread. Most orders imposed “stay at home” and social distancing regulations that significantly impacted citizens’ freedom of movement, worship, and their ability to work and earn income.123 Public transportation was reduced,124 schools were shut down and classes moved online,125 and places of worship such as churches, synagogues, and mosques were closed.126 Access to public beaches was denied in several states, including restrictions imposed on private property of beachfront owners.127 Most states prohibited or suspended evictions of residential and commercial rental units.128 These regulations prompted widespread public backlash, in large part because of the mandated shutdown of all non-life-sustaining businesses.129 Alongside the public backlash, several businesses owners and beachfront owners brought legal challenges to these regulations.130 Among other constitutional claims, the owners argued that the regulations violate the Fifth Amendment to the United States Constitution because they prohibited them from using their property, and therefore resulted in a taking of private property for public use without the payment of just compensation.131 Though most of these legal proceedings are still underway, the Supreme Court of Pennsylvania’s Friends of Danny Devito v. Wolf ruling—that rejected the petitioners’ taking claim—might be the first sign of how courts may deal with these challenges.132
In Friends of Danny Devito, the court relied on the United States Supreme Court’s ruling in Tahoe-Sierra, suggesting that temporal regulation of private property was considered an exertion of the state police power, rather than its eminent domain power.133 In Tahoe-Sierra, the Tahoe Regional Planning Agency imposed two moratoria, totaling thirty-two months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area.134 Several owners affected by the moratoria argued that the regulations constituted a taking of their property without just compensation. The Court emphasized the temporal character of the regulation and distinguished temporal regulations—although causing diminution in property value—from permanent regulations. According to the Court, “a permanent deprivation of the owner’s use of the entire area is a taking of ‘the parcel as a whole,’ whereas a temporary restriction that merely causes a diminution in value is not.”135 The Court justified this distinction by arguing that “[l]ogically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted.”136 While the economic applicability of this justification is contested,137 the Supreme Court of Pennsylvania nonetheless relied on this distinction in Friends of Danny Devito. Focusing on the temporal character of the COVID-19 regulations, the court concluded that the regulations should be seen as exertion of the state police power rather than its eminent domain power, and therefore the government was under no obligation to compensate for owners’ losses.138
Relying on the temporal character of the regulations, however, cannot in and of itself categorically justify that governmental regulation of property is an exertion of the state police power. The Tahoe-Sierra Court explicitly rejected such a categorical rule, and suggested that Penn Central’s analytical inquiry is the proper method for determining what power was exerted by the state. Chief Justice Saylor’s dissenting opinion in Friends of Danny Devito further emphasized the rejection of the regulation temporality as a categorical rule for rejecting takings claims. Since the petitioners in Friends of Danny Devito petitioned the Supreme Court for a writ of certiorari, based, inter alia, on Chief Justice Saylor’s dissenting opinion, and as similar complaints start piling up in courts across the country, it is necessary to rethink how COVID-19 takings claims should be determined. I argue that the proposed theory allows both lawmakers and courts to properly consider the implications of such regulations on both owners, and equally important, on the community.
The proposed theory suggests that when the government interferes with private property, owners’ autonomy should prevail unless the government complies with both the Generality of Action and the Indispensability Tests. If the government passes both tests, then its actions should be considered as within its police power and it would be exempt from paying compensation to owners. If it fails to comply with either test, and this flaw cannot be repaired by the interplay mechanism, the government should avoid from going on with the project, unless the owners are compensated. The following paragraphs examine the extent to which the current COVID-19 regulations’ comply with the two tests, which will ultimately help determine if the regulations should be considered as the government’s exercise of its police power or as a taking under the Fifth Amendment.
Should the business shutdowns be considered exercise of the state police power? Since the regulations interfere with property owners’ autonomy and have significant economic implications for businesses, the answer to this question should depend on the regulations’ compliance with the theory’s dual tests. As previously mentioned, each of these tests include two sub-examinations: The Indispensability Test examines how vital these regulations are for providing for community needs as well as their proportionality to achieve the government’s ends. The Generality of Action Test includes a substantive examination about the general applicability of the regulation, as well as procedural requirements to ensure due process. Do the COVID-19 business shutdown regulations comply with these requirements?
Beginning with the Indispensability Test, the COVID-19 “stay at home” and social distancing regulations are designed to prevent the spread of the virus and to reduce the rates of morbidity and mortality. Because COVID-19’s characteristics and its health effects are not fully known, no vaccine or cure was available, and in view of the high infection rates in many countries, states across the country acted rapidly in attempt to reduce infection rates through social distancing. Similar measures were taken in many countries around the world.139 The importance of taking steps to reduce morbidity and mortality, especially considering COVID-19’s uncertain reality, is high and significant. The governments that enacted such regulations, therefore, pass the importance of need requirement. These characteristics of COVID-19 also contribute to the government compliance with the proportionality requirement. Despite the significant economic harm to business owners, and despite the significant restrictions imposed on owners with regard to property use, the “stay at home” and social distancing regulations should be considered as proportionate. This result is evident both because of the great importance of achieving social distancing and the prevention of morbidity and mortality, but also because of the lack of real alternatives to achieving these goals. As mentioned, at the time of this writing there was no vaccine or approved cure to cope with COVID-19, and achieving the goal—i.e., reducing morbidity and mortality rates—is possible at this stage only by ensuring social distancing and preventing infection. These measures have been shown to be effective in various countries around the world, as well as in several states in the U.S. Lack of alternative measures, alongside the temporal character of the social distancing regulations, make the regulations proportional, despite their harmful effects on property owners. This determination, however, should not serve as a basis for arbitrary and discriminatory regulation. Decisions regarding the extent of imposed regulations, the characteristics of the businesses authorized to operate, and the extent of the restrictions imposed on the population (including property owners) should be made on a professional basis and supported by data indicating that these determinations have been made proportionately to deal with the outbreak. Therefore, these regulations should be sensitive to the situation on the ground and change according to the evolution of the pandemic and its effects on the population in a given state. The flexibility required by decision-makers in relation to the scope and scale of COVID-19 regulations is a significant component in determining their proportionality. Therefore, while the urgency and uncertainty that characterizes the current state of affairs may require recognizing that current COVID-19 regulations comply with the proportionality requirement, such recognition depends on a constant and comprehensive review by decision-makers regarding the scope and scale of these measures.
The compliance of the COVID-19 regulations with both requirements of the Indispensability Test, however, does not end the analytical inquiry regarding these regulations’ impact on owners. The regulations should also comply with the Generality of Action Test, which examines both the general applicability of these regulations and the procedures in which they were issued. The COVID-19 “stay at home” and social distancing regulations apply to all segments of the population, without any “suspicious” exceptions given on the basis of belonging to different groups in the population. The only exceptions given in most states to these regulations were for life-saving businesses, or those that play a vital role in society’s basic functioning such as supermarkets and pharmacies.140 These regulations, therefore, do not target specific owners, as evidenced by the multitude of complaints to courts.141 The general applicability of the COVID-19 regulations stems out of the recognition that contracting the virus does not medically depend on one’s race, religious affiliation, or income. It also complies with the proposed theory requirement that governments would not use their powers to improperly target specific, individual owners as part of their commitment to the rule of law.142
The Generality of Action Test, however, includes another, more procedural requirement, according to which the government interference with private property should be in accordance with a notion of due process, one that will grant owners and other stakeholders the ability to resist, understand, and realize the importance of community need. The realization of the procedural requirement should be achieved through citizen participation, including public hearings, to allow owners to present their opposition to the regulation. In the case of the COVID-19 regulations, this can hardly be considered the case. Governors and mayors from all across the United States responded quickly and decisively by issuing executive orders that imposed restrictions on individuals’ mobility, worship, and earning. While the issuance of executive orders lays within the authority of the governors, they nevertheless failed to follow the procedures characterized by other property regulations. No public participation in the process was allowed, and owners were not given opportunity to oppose the regulations. Excluding the public in general and the affected owners in particular from the decision-making processes reduces the government compliance with the procedural requirement of the Generality of Action Test. But does that mean that the government failed to meet the proposed theory tests, and therefore exceeded its police power?
To answer this question, the failure of the COVID-19 regulations to meet the procedural requirement of the proposed theory should be examined through the interplay mechanism embedded in the theory. The interplay mechanism suggests that if the government only partially complies with one of the tests, this flaw may be remedied by strict compliance with the other test. These tests affect one another, and therefore a decrease in one may be remedied by increase in the other.143 Can the COVID-19 regulations’ failure to meet the procedural requirement of the proposed theory be remedied by strict compliance with all the other theory’s requirements? The answer should be yes! As the proposed theory suggests, partial compliance in the Generality of Action Test can and should be remedied by strict compliance with the Indispensability Test. In the case of COVID-19, the regulations strictly complied with the Indispensability Test’s requirements, as well as with the substantive aspect of the Generality of Action Test. The medical emergency contributes to this determination, as it sharpens the importance of these regulations to ensure public health, and also tips the scale in viewing these regulations as proportional to achieve the government ends. Applying the interplay mechanism to the COVID-19 regulations demonstrates that the regulations succeed in passing the property’s tipping point, and refute the presumption of owners’ autonomy superiority. In such a case, as the theory suggests, the government exerts its police power to ensure public health, safety, and welfare. It therefore should not be obligated to pay compensation to owners, as its actions do not violate the Fifth Amendment and no takings occur.
Viewing COVID-19 regulations as exertion of the state police power, however, does not grant the government immunity from takings responsibility. Insofar as the regulation will not be sensitive to the situation on the ground, and its extent will not change according to the medical findings, the regulation may violate the Fifth Amendment taking clause. As previously mentioned, the COVID-19 regulations interfere, sometimes severely, with private property. Though there are businesses able to cope with the significant economic damage caused by the regulations, there are also likely to be businesses that collapse and fail to recover. Property owners will be expected to bear the COVID-19 pandemic’s financial burden long after its health effects are gone. The uncertainty surrounding the medical response to the coronavirus, as well as the possibility of finding a vaccine or cure, requires the government to be on the pulse with regard to its interference with private property. The determination that the regulations are proportionate depends to a large extent on their flexibility, and the willingness of the government to adjust their scope to the evolving situation. As the government refrains from adjusting the regulations to the medical situation, there is a risk that the regulations will become disproportionate. In this case, the assertion that the COVID-19 regulations are an exertion of the state police power will be reversed, as the disproportionality of regulations, along with their procedural failures, requires a conclusion that they do not meet the proposed theory requirements. In this case, the interplay mechanism also does not help cure the failures, as both tests are only partially realized. A government failure to respond to changes and to adjust the scope and scale of the regulations to the situation on the ground may trigger its responsibility to compensate owners for their damage.
What does this inquiry tell us about the future of Friends of Danny Devito v. Wolf and the similar complaints currently awaiting courts’ determinations? The proposed theory first denies the categorical rule adopted by the Supreme Court of Pennsylvania in Friends of Danny Devito suggesting that temporal interference with private property cannot be considered as takings. This assumption was rejected by the Tahoe-Sierra court, upon which the Friends of Danny Devito court relied in its determination, and it contradicts Penn Central’s rule that any determination regarding the power exerted by the state when regulating property should be done after analytical inquiry. Rejecting temporality of regulation as the ultimate factor requires recognizing that government regulation interfering with private property may be considered a violation of the Fifth Amendment Takings Clause depending on the circumstances. The proposed theory strengthened this notion. While recognizing that current emergency circumstances support viewing states and local COVID-19 regulations as an exertion of the state police power, the proposed theory does not close the door to future takings claims. Changes that are expected to occur in dealing with the coronavirus, as well as more information about its public health implications, will require the government to adjust its regulation and its scope. The government’s failure to do so may require recognition that the state exercises eminent domain power rather than its police power. Whether or not such determination requires the government to pay compensation to owners depends on the interpretation given to the “necessity exception.”144 Yet, this investigation goes beyond the scope of this article.
Conclusion
Takings compensation claims, stemming out of the government’s COVID-19 regulations, cannot be easily resolved. While current emergency circumstances may support viewing these regulations, despite their harmful effects on private property, as an exertion of the state police power, this assertion depends on the circumstances—and these may change. To address this, this article proposes a theory to determine what power does the government exerts when regulating property. This theory—focusing on the tension between owners’ autonomy and community needs—provides two cumulative tests that the government should comply with to overcome the presumption of owners’ autonomy superiority. When the government interferes with private property to achieve public goals—be it for societal health, safety, welfare, or for other public uses—it may be considered to exert either its police power or its eminent domain power. According to current property jurisprudence, the most significant implication of such determination relates to the government’s liability to pay compensation to owners for the harm.
Aiming to contribute to the muddled discourse regarding the state powers and their effects on owners, the proposed theory suggests practical and workable measures to aid in making that determination. These measures—the Generality of Action Test and the Indispensability Tests—aim to dispel the prevailing fog in the Supreme Court rulings on this issue. It provides that when the government complies with both tests, its actions should be regarded as an exertion of its police power. When the government fails to comply with either test, and this failure cannot be remedied by the interplay mechanism incorporated in the theory, then the regulation should be considered as an exertion of the government eminent domain power. The practical difference between these cases is that in the former, the government is not liable for compensation, while in the latter it is.
This theory contributes to resolution of one of the big emerging legal issues: property owners, especially business owners, who were harmed by the COVID-19 “stay at home” and social distancing regulations, claiming that they are owed compensation and that the State violated the Fifth Amendment Takings Clause. While the article concludes that the current emergency condition justifies viewing current COVID-19 regulations as an exertion of the state police power, it nevertheless rejects a priori denial of the government liability for takings compensation. This article suggests that such liability depends on the government adjusting the regulations to the changing circumstances and needs relevant to dealing with the health condition. As I argued, a lack of regulatory adjustment may give rise to property owners claims for takings compensation. Therefore, although the COVID-19 state of emergency supports viewing states’ regulation as exertion of their police power, it does not grant them immunity from claims for compensation—that is, to the extent that the state fails to adapt the regulation to the evolving circumstances.
Endnotes
1. See, e.g., State Data and Policy Actions to Address Coronavirus, Kaiser Family Foundation (June 1, 2020), https://www.kff.org/health-costs/issue-brief/state-data-and-policy-actions-to-address-coronavirus/#socialdistancing [hereinafter State Coronavirus Actions]; Emre Aytekin, Steps Taken by Countries in Fighting COVID-19 Pandemic, Anadolu Agency (Apr. 4, 2020), https://www.aa.com.tr/en/health/steps-taken-by-countries-in-fighting-covid-19-pandemic/1812009.
2. Sarah Mervosh, Denise Lu, & Vanessa Swales, See Which States and Cities Have Told Residents to Stay at Home, N.Y. Times (Apr. 20, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html?searchResultPosition=3; 2020 State and Local Government Responses to COVID-19, Stateside (June 5, 2020), https://www.stateside.com/blog/2020-state-and-local-government-responses-covid-19.
3. Several states imposed restrictions on public transportation, while others restricted or discouraged out of state travel. See State Regulatory Responses to COVID-19, Steptoe (May 29, 2020), https://www.steptoe.com/images/content/2/0/v2/203411/COVID-19-State-Regulatory-Tracker-05.29.2020.pdf [hereinafter State Responses].
4. Schools were shut down in all 50 states. See id.
5. The Supreme Court has recently temporarily barred New York from enforcing strict attendance limits on places of worship. See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). For a comprehensive review regarding religious exemptions from COVID-19 regulations, see Virginia Villa, Most States Have Religious Exemptions to COVID-19 Social Distancing Rules, Pew Research Ctr. (Apr. 27, 2020), https://www.pewresearch.org/fact-tank/2020/04/27/most-states-have-religious-exemptions-to-covid-19-social-distancing-rules/. On May 29, 2020, the United States Supreme Court declined to intervene in challenges to stay-at-home orders by churches in southern California and the Chicago area because of the COVID-19 crisis. See South Bay United Pentecostal Church v. Newsome, 140 S. Ct. 1613 (2020) (denying application for injunctive relief).
6. See, e.g., Alabama’s Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19, at 2 (Mar. 20, 2020), https://governor.alabama.gov/assets/2020/03/Amended-Statewide-Social-Distancing-SHO-Order-3.20.2020-1.pdf (closing the state’s beaches); Third Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat, at 2–3 (Mar. 12, 2020), https://governor.delaware.gov/wp-content/uploads/sites/24/2020/03/Third-Modification-to-State-of-Emergency-03212020.pdf (same); State of Hawaii Fifth Supplementary Proclamation, at 3 (Apr. 17, 2020), https://governor.hawaii.gov/wp-content/uploads/2020/04/2004088-ATG_Fifth-Supplementary-Proclamation-for-COVID-19-distribution-signed.pdf (same); State of Florida Office of the Governor Executive Order 20-68, at 2 (Mar. 17, 2020), https://www.flgov.com/wp-content/uploads/2020/03/EO-20-68.pdf (supporting beach closures at the discretion of local authorities); State of New Jersey Administrative Order No. 2020-5, at 2 (Mar. 24, 2020), http://d31hzlhk6di2h5.cloudfront.net/20200324/bd/32/3d/02/44124f153e65683019df5298/admin_order_2020-5_cell_phone__002_.pdf (clarifying that municipalities may impose additional restrictions on beaches).
7. See, e.g., Complaint at 20, Dodero v. Walton Cty., No. 3:20-cv-05358-RV-HTC (N.D. Fla. Apr. 6, 2020) (claiming that a Walton County, Florida ordinance closing all public beaches restricts beachfront owners’ ability to “set foot in their own backyards”).
8. Some states, such as Alabama, Colorado, Hawaii, New York, North Carolina, Ohio, Pennsylvania, and Utah, instituted a moratorium on residential evictions. See The Council of State Governments COVID-19 Resources For State Leaders, https://web.csg.org/covid19/executive-orders/ (last visited June 10, 2020). In other states—such as Connecticut, the District of Columbia, Kentucky, Maine, Massachusetts, New Mexico, North Dakota, Oklahoma, South Carolina, Tennessee, and Texas—the prohibition on or suspension of evictions were determined by courts. See, e.g., Order Regarding Coronavirus Aid, Relief, & Econ. Sec. Act, SCAD 2020-38, 2020 WL 2093065, at *1 (Okla. May 1, 2020).
9. See, e.g., Robert H. Thomas, Evaluating Emergency Takings: Flattening the Economic Curve (May 7, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3593789 (analyzing the potential takings claims stemming from emergency measures under current takings doctrine); Ilya Somin, Does the Takings Clause Require Compensation for Coronavirus Shutdowns? Reason (March 20, 2020), https://reason-com.cdn.ampproject.org/c/s/reason.com/2020/03/20/does-the-takings-clause-require-compensation-for-coronavirus-shutdowns/?amp) (arguing that most claims will not receive compensation under the Takings Clause). Cf. F.E. Guerra-Pujol, The Kelo Case Provides a Strong Legal Argument for Takings Clause Lockdown Compensation, The Bridge (Apr. 24, 2020), https://www.mercatus.org/bridge/commentary/kelo-case-provides-strong-legal-argument-takings-clause-lockdown-compensation (asserting that Kelo v. City of New London, 545 U.S. 469 (2005)—which controversially held that a city could acquire residential properties, without owners’ consent, and transfer them to a private developer as long as the owners were compensated for the property value—can be used “to support the argument that the takings clause, including its requirement of just compensation, applies to coronavirus lockdowns”).
10. 438 U.S. 104 (1978).
11. See Thomas, supra note 9, at 11; Somin, supra note 9.
12. Friends of Danny Devito v. Wolf, No. 68 MM 2020, 2020 WL 1847100 (Pa. Apr. 13, 2020).
13. Id. at *17 (“The Executive Order results in only a temporary loss of the use of the Petitioners’ business premises, and the Governor’s reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens, undoubtedly constitutes a classic example of the use of the police power to ‘protect the lives, health, morals, comfort, and general welfare of the people[.]’” (quoting Manigault v. Springs, 199 U.S. 473, 480 (1905)).
14. See id. at *25 (Saylor, J., dissenting) (“[T]he majority allocates too much weight to temporariness to defeat developed allegations of a lack of due process in the executive branch’s determination of which businesses must close and which must remain closed. . . . I don’t believe the executive’s determinations of propriety can go untested in the face of the present allegations of inconsistency and irrationality.”).
15. Application for a Stay, Friends of Danny Devito v. Wolf, No. 19A1032 (Apr. 27, 2020).
16. See, e.g., United States v. Caltex, Inc., 344 U.S. 149, 155 (1952) (“[T]his property . . . was destroyed, not appropriated for subsequent use. It was destroyed that the United States might better and sooner destroy the enemy. The terse language of the Fifth Amendment is no comprehensive promise that the United States will make whole all who suffer from every ravage and burden of war.”); Brian Angelo Lee, Emergency Takings, 114 Mich. L. Rev. 391 (2015) (asserting that the Takings Clause requires the government to pay compensation to owners when the government confiscates and uses their private property to address an emergency, but that “[r]emarkably . . . courts have repeatedly held that if the government responds to an emergency by destroying private property altogether, instead of merely confiscating and using it, then the owner ceases to be entitled to any compensation”).
17. Order of the Governor of the Commonwealth of Pennsylvania Regarding the Closure of All Businesses that Are Not Life Sustaining, at 1 (Mar. 19, 2020), https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-TWW-COVID-19-business-closure-order.pdf.
18. Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. Apr. 13, 2020).
19. The petitioners also pointed out that the prohibition violates Article I, Section 10 of the Pennsylvania Constitution. See id. at *15.
20. See Complaint, Gondola Adventures, Inc. v. Newsom, No. 2:20-cv-03789 (C.D. Cal. Apr. 23 2020) (seeking injunctive and declaratory relief); Complaint, Prof. Beauty Fed’n of California v. Newsom, No. 2:20-cv-04275 (C.D. Cal. May 12, 2020) (same).
21. See Complaint, Hoganwillig, PLLC v. James, No. 1:20-cv-00577 (W.D.N.Y. May 13, 2020).
22. See Complaint, Behar v. Murphy, No. 3:20-cv-05206 (D. N.J. Apr. 28, 2020).
23. See Civil Rights Class Action Complaint, Capelli Milano, LLC v. Sisolak, No. 2:20-cv-00827 (D. Nev. May 7, 2020); Complaint, Calvary Chapel Lone Mountain v. Sisolak, No. 2:20-cv-009007 (D. Nev. May 20, 2020).
24. See Complaint, Amato v. Elicker, No. 3:20-cv-00464 (D. Conn. Apr. 3, 2020).
25. See Complaint, Martinko v. Whitmer, No. 2:2020cv10931 (E.D. Mich. Apr. 14, 2020).
26. See Complaint, Lawrence v. State of Colorado, No. 1:2020cv00862 (D. Colo. Mar. 30 2020) (seeking injunctive relief pursuant to Federal Rule of Civil Procedure 65).
27. See Complaint, Dodero v. Walton County, No. 3:30-cv-05358-RV-HTC (N.D. Fla. Apr. 6, 2020).
28. See Complaint, Pearson v. Pritzker, No. 1:20-cv-02888 (N.D. Ill. May 13, 2020).
29. See Complaint, Antietam Battlefield KOA v. Hogan, No. No. CCB-20-1130 (D. Md. May 20, 2020).
30. See Complaint at 11–12, Dodero v. Walton County, No. 3:30-cv-05358-RV-HTC (N.D. Fla. Apr. 6, 2020) (“The County and Sheriff, through threats of prosecution including fines of up to $500 and jail (up to 60 days), have physically prevented Plaintiffs from being able to use or even set foot in their own backyards. . . . On a daily basis, these County officials continue to enter and occupy Plaintiffs’ private properties and prevent Plaintiffs, their family members, or invitees from being able to possess or physically occupy their own private properties.”).
31. See Verified Complaint for Temporary and Permanent Injunctive Relief and in Lieu of Prerogative Writ, Union City Prop. Housing Initiative v. City of Union City, No. HUD-L-001772-20 (N.J. Super. Ct. May 11, 2020); Complaint, Elmsford Apartment Assoc., LLC v. Cuomo, No. 1:20-cv-04062 (S.D.N.Y. May 27, 2020).
32. Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. Apr. 13, 2020).
33. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002).
34. Friends of Danny Devito, 227 A.3d at 896 (“The Executive Order results in only a temporary loss of the use of the Petitioners’ business premises, and the Governor’s reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens, undoubtedly constitutes a classic example of the use of the police power to ‘protect the lives, health, morals, comfort, and general welfare of the people . . . .’”).
35. Id. at 881.
36. Id.
37. See Friends of Danny Devito, 227 A.3d at 903–04 (Saylor, J., concurring in part and dissenting in part).
38. Id. (“To me, the majority allocates too much weight to temporariness to defeat developed allegations of a lack of due process in the executive branch’s determination of which businesses must close and which must remain closed . . . . Again, there seems to be a factual dynamic that should not be dismissed out of hand. Certainly, the executive branch may engage in proper exercises of police power in a disaster emergency, and a fair amount of deference to its decisions may be in order. At least short of martial law, however—relative to the broad-scale closure of Pennsylvania business for a prolonged period—I don’t believe the executive’s determinations of propriety can go untested in the face of the present allegations of inconsistency and irrationality.”).
39. Id. (“While the majority repeatedly stresses that such closure is temporary, this may in fact not be so for businesses that are unable to endure the associated revenue losses. Additionally, the damage to surviving businesses may be vast.”).
40. Id. (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 337 (2002)).
41. Application to Stay Enforcement, Friends of Danny Devito v. Wolf, No. 19A1032 (U.S. Apr. 27, 2020).
42. For a comprehensive description of this ongoing legal debate, see, for example, Ernst Freund, The Police Power: Public Policy and Constitutional Rights 546–54 (1904); Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964); William B. Stoebuck, Police Power, Takings, and Due Process, 37 Wash. & Lee L. Rev. 1057 (1980).
43. Mugler v. Kansas, 123 U.S. 623, 661 (1887) (“Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.”).
44. U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”).
45. 467 U.S. 229, 240 (1984).
46. See Sax, supra note 42, at 37 (“Though all agree that compensation is required only for a governmental “taking” of property and not for losses occasioned by mere ‘regulation,’ the generality of the theory thus formulated is of little help in deciding any given case.”).
47. 61 Mass. 53 (1851).
48. 123 U.S. 623 (1887).
49. 260 U.S. 393 (1922).
50. See generally Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, 57 S. Cal. L. Rev. 561 (1984) (exploring “possible reasons for the elusiveness of the meaning of ‘taking’” in property law jurisprudence).
51. See Alger, 61 Mass. at 53.
52. Id. at 86.
53. See, e.g., William B. Stoebuck, Police Power, Takings, and Due Process, 37 Wash. & Lee L. Rev. 1057, 1059–60 (1980); Kevin P. Arlyck, What Commonwealth v. Alger Cannot Tell Us About Regulatory Takings, 82 N.Y.U. L. Rev. 1746, 1761–65 (2007).
54. See Alger, 61 Mass. at 86.
55. D. Benjamin Barros, The Police Power and the Takings Clause, 58 U. Miami L. Rev. 471, 503 (2004) (“As the modern regulatory state developed in the late nineteenth century, and the scope of police regulation increasingly transcended its community-based common law roots, police regulations increasingly restricted uses of private property that were not so inherently harmful that they could be condemned as noxious uses.”).
56. 272 U.S. 365, 387 (1926).
57. Id. at 387 (“The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions.”).
58. 123 U.S. 623 (1887).
59. Id. at 655–57.
60. See infra Part I.
61. Mugler, 123 U.S. at 669 (“The power which the States have of prohibiting such use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not—and, consistently with the existence and safety of organized society, cannot be—burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.”).
62. Id. (“The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law.”).
63. Sax, supra note 42, at 46–47.
64. Id. at 48.
65. 260 U.S. 393 (1922).
66. Id. at 414.
67. Id. at 415.
68. This is also true of the dissenting opinion. See id. at 416–22 (Brandeis, J., dissenting); see also Constitutional Law—Legislative Powers: Impairment of the Obligation of Contracts—Pennsylvania “Cave-in” Statute, 36 Harv. L. Rev. 753 (1923) (“Both majority and dissent concede that the constitutionality of such interference without compensation is a question of degree.”).
69. Mahon, 260 U.S. at 413.
70. See supra Part III.A.2.
71. For the role of certainty in properly incentivizing owners’ investment policies, see Lawrence Blume & Daniel L. Rubinfeld, Compensation for Takings: An Economic Analysis, 72 Calif. L. Rev. 569, 619–20 (1984); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165 (1967).
72. See Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 Colum. L. Rev. 1697, 1697 (1988) (“Whatever the merits of ad hoc balancing in other areas of law, it has special difficulties in the takings area because of the important role of investment-backed expectations.”).
73. See Laura S. Underkuffler, The Idea of Property: Its Meaning and Power 68 (2003); Gregory S. Alexander, Property’s Ends: The Publicness of Private Law Values, 99 Iowa L. Rev. 1257, 1264 (2014); Charles A. Reich, The New Property, 73 Yale L.J. 733, 733 (1964) (“T[he] institution called property guards the troubled boundary between individual man and the state. It is not the only guardian; many other institutions, laws, and practices serve as well. But in a society that chiefly values material well-being, the power to control a particular portion of that well-being is the very foundation of individuality.”); Hanoch Dagan, Pluralism and Perfectionism in Private Law, 112 Colum. L. Rev. 1409, 1423 (2012) (arguing that private law in general, and property law in particular, should be designed to allow people to “be the authors of their own lives, choosing among worthwhile life plans and being able to pursue one’s choice”).
74. Alexander, supra note 73, at 1264.
75. See, e.g., Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 23 (1985) (“Private property could serve the ends of allocative efficiency and of personal security and independence. It is likely that it serves both and that these turn out to be highly interdependent.”); Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347, 348 (1967) (“A primary function of property rights is that of guiding incentives to achieve a greater internalization of externalities.”); Garrett Hardin, The Tragedy of the Commons, 162 Sci. 1243, 1244–45 (1968) (discussing private property’s efficiency gains).
76. See Hardin, supra note 75, at 1245 (discussing the private-property solution to the threat imposed to national parks preservation by their being open to all and the private property role in controlling pollution).
77. The idea that the allocation of private-property rights promotes creativity lies in John Locke’s property conception, according to which owners gain ownership as a result of investing their work in objects. See John Locke, Second Treatise of Government 19 (C.B. Macpherson ed., Hackett Publ’g Co. 1980) (1690) (“The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.”). Locke’s labor theory of property has become one of the most influential theories of intellectual property. See, e.g., Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287, 288 (1988) (arguing that the constitutional vision of property was informed by the Lockean “labor theory,” which places significance to creativity and efforts; according to Hughes, “this labor justification can be expressed either as a normative claim or as a purely incentive-based, instrumental theory”).
78. See, e.g., Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy 237 (2009) (arguing that one of the important tasks of modern political philosophy was to reconcile the important and ineliminable nature of the police power with the ideas of limited government); Underkuffler, supra note 73, at 85–102 (offering a detailed theoretical model to determine when public interests should override owner rights); Gregory S. Alexander & Eduardo M. Peñalver, Properties of Community, 10 Theoretical Inquiries L. 127, 127 (2009) (discussing the interplay between the individual and the community); Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 Wm. & Mary L. Rev. 1849, 1849–50 (2007) (denying the utilitarian indifference for owners’ rights as well as to distributive justice).
79. Shai Stern, Property’s Tipping Point, 39 Cardozo L. Rev. 1693 (2018).
80. Id. at 1700–03.
81. See supra note 78 and accompanying text.
82. See Stern, supra note 79, at 1706–11.
83. Lon L. Fuller, The Morality of Law 46–49 (rev. ed. 1969). Fuller presents a list of principles generated to capture formal requirements of the rule of law. According to Fuller, the first principle that may cause the state to deviate from acting in accordance to the rule of law is its failure to generate generally applicable rules, “so that every issue must be decided on an ad hoc basis.” Id. at 39. In other words, lack of generality causes governments to fail to act within the rule of law.
84. See Stern, supra note 79, at 1706–08.
85. To take the proportionality requirement from mere theory to actual practice, it would be important to establish a method of determining the proportionality of an action based on three prominent proportionality subprinciples: (1) Suitability—the suitability of the action to achieve the desired end; (2) Necessity—the adoption of the least intrusive, equally efficient alternative; and (3) Proportionality in the narrower sense—which requires that the burden that results from the action would not be excessive in relation to the public interest. These principles are the constituent elements of the German law proportionality principle, which is an unwritten constitutional rule derived from the principle of the rule of law. For an analysis of the German proportionality principle, see E. Thomas Sullivan & Richard S. Frase, Proportionality Principles in American Law: Controlling Excessive Government Actions 28–31 (2009).
86. Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 240 (1984).
87. 61 Mass. 53 (Mass. 1851).
88. 123 U.S. 623 (1887).
89. 260 U.S. 393 (1922).
90. See Stern, supra note 79, at 1711–12.
91. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982) (“[W]e conclude that a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve.”).
92. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926) (“The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions.”).
93. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 133 (1978).
94. Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
95. 438 U.S. at 115–17.
96. Id. at 124.
97. Id.
98. 505 U.S. 1003 (1992).
99. Id. at 1015 (“The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land.”).
100. Id. at 1016 (“As we have said on numerous occasions, the Fifth Amendment is violated when land-use regulation ‘does not substantially advance legitimate state interests or denies an owner economically viable use of his land.’” (quoting Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)).
101. Id. at 1017.
102. 535 U.S. 302, 334 (2002).
103. Id. at 339.
104. See Lee, supra note 16, at 396–401 (discussing different types of emergencies that might require the government to interfere with private property).
105. See Shai Stern, Imperfect Takings, 46 Fordham Urb. L.J. 130, 157–160 (2019).
106. See United States v. Caltex, Inc., 344 U.S. 149, 155–56 (1952).
107. See, e.g., Miller v. Schoene, 276 U.S. 272, 280–81 (1929) (concluding that a destruction of cedar trees without compensation just because they could carry a disease harmful to nearby apple trees was a legitimate exercise of the state police power).
108. See, e.g., Kimball Laundry Co. v. United States, 338 U.S. 1 (1949) (ordering compensation for temporal taking of a plant of the Kimball Laundry Co. in Omaha, Nebraska for Army use).
109. See Lee, supra note 16; see also Thomas, supra note 9.
110. Eugene Kontorovich, Liability Rules for Constitutional Rights: The Case of Mass Detentions, 56 Stan. L. Rev. 755 (2004).
111. Id. at 760.
112. See Lee, supra note 16, at 394–95.
113. Id. at 404–06.
114. Thomas, supra note 9, at 30.
115. Id. at 2–25.
116. Id. at 30.
117. 290 U.S. 398 (1934).
118. Id. at 425.
119. Id.
120. See United States v. Caltex, Inc., 344 U.S. 149, 155 (1952).
121. Lee, supra note 16.
122. Thomas, supra note 9, at 25–48.
123. For a comprehensive state-by-state review of state regulatory responses to COVID-19, see State Responses, supra note 3.
124. For example, the governor of Maine, Janet T. Mills, issued an Executive Order on March 31, 2020, which ordered “No one shall use public transportation unless absolutely necessary, for an essential reason or for an essential job that cannot be done from home.” An Order Regarding Further Restrictions on Public Contact and Movement, Schools, Vehicle Travel and Retail Business Operations, at 3 (Mar. 31, 2020), https://www.maine.gov/governor/mills/sites/maine.gov.governor.mills/files/inline-files/An%20Order%20Regarding%20Further%20Restrictions%20on%20Public%20Contact%20and%20Movement%2C%20Schools%2C%20Vehicle%20Travel%20and%20Retail%20Business%20Operations.pdf.
125. Schools were shut down in all 50 states. See State Responses, supra note 3.
126. For a comprehensive review regarding religious exemptions from COVID-19 regulations, see Villa, supra note 5.
127. See supra note 6.
128. See supra note 8.
129. See, e.g., Michelle Mark, Idaho’s Stay-at-Home Order has Sparked a Rebellion, and Outraged Activists are Urging People to ‘Disobey’ Coronavirus Restrictions, Insider (Apr. 16, 2020, 11:59 AM), https://www.insider.com/idaho-stay-at-home-coronavirus-order-sparks-rebellion-2020-4; Seth Herald, Trump Supporters Gather in Large Crowd to Protest Michigan’s COVID-19 Stay-at-Home Orders, Nat’l Post (Apr. 15, 2020, 11:29 PM), https://nationalpost.com/news/world/trump-backers-protest-michigan-stay-at-home-orders-at-state-capitol; Ronn Blitzer, Michigan Gov. Whitmer Facing Backlash for Going to ‘Radical Extremes’ With Stay-at-Home Order, Fox News (Apr. 13, 2020), https://www.foxnews.com/politics/michigan-gov-whitmer-facing-backlash-for-expanded-stay-at-home-order.
130. See supra notes 20–31.
131. U.S. Const. amend. V.
132. No. 68 MM 2020, 2020 WL 1847100 (Pa. Apr. 13, 2020).
133. Id. at *17.
134. 535 U.S. 302 (2002).
135. Id. at 332.
136. Id.
137. See Thomas, supra note 9, at 39.
138. Friends of Danny Devito v. Wolf, No. 68 MM 2020, 2020 WL 1847100, at *17 (Pa. Apr. 13, 2020).
139. See e.g., State Coronavirus Actions, supra note 1; Aytekin, supra note 1.
140. For a detailed review on states’ orders regarding the “stay in place” and essential businesses closures, see State Responses, supra note 3.
141. See supra notes 20–31.
142. See supra Part III.B.
143. Id.
144. See Lee, supra note 16; Thomas, supra note 9, at 18–25.