Good information for businesses:
COVID-19: Emergency Powers and Constitutional Limits
Supreme Court and Appellate Alert
March 23, 2020
Takings Clause
Although the Due Process Clause does not afford businesses much protection, the Takings Clause of the Fifth Amendment may offer more. Under the Takings Clause, the government may not take private property for public use “without just compensation.†But whether an action constitutes a “taking†often depends on the nature of the government’s action. Below, we outline the different takings arguments in three situations:
1. Forced business closures
If the government forces a business to close indefinitely due to the pandemic, it could be considered a “regulatory taking.†In Lucas v. South Carolina Coastal Council, the Supreme Court stated that government action depriving owners of “all economically beneficial or productive use of the[ir] land†is a taking requiring just compensation.3 But if the closure is only temporary, then a court will be much less likely to deem it a “takingâ€; the Supreme Court has said that property “cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted.â€4 Assuming that any closures are temporary, a takings argument is unlikely to prove successful. But longer-term closures, or specialized circumstances that are the equivalent of a permanent closure (such as a closure that imposes an extreme or peculiar hardship on a business), may bolster a takings claim....
https://www.akingump.com/en/news-insights/covid-19-emergency-powers-and-constitutional-limits.htmlWe are way past a temporary situation and it could be considered a taking of property because many businesses will be forced to close.
