The Coronavirus Pandemic Shutdown and Distributive Justice: Why Courts Should Refocus The Fifth Amendment Takings Analysis

Loyola of Los Angeles Law Review Loyola of Los Angeles Law Review

Volume 54 Number 2 Article 2

Winter 2-1-2021

The Coronavirus Pandemic Shutdown and Distributive Justice: The Coronavirus Pandemic Shutdown and Distributive Justice:

Why Courts Should Refocus The Fifth Amendment Takings Why Courts Should Refocus The Fifth Amendment Takings

Analysis Analysis

Timothy M. Harris

Seattle University School of Law

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Timothy M. Harris,

The Coronavirus Pandemic Shutdown and Distributive Justice: Why Courts Should

Refocus The Fifth Amendment Takings Analysis

, 54 Loy. L.A. L. Rev. 455 (2021).

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455

THE CORONAVIRUS PANDEMIC SHUTDOWN

AND DISTRIBUTIVE JUSTICE: WHY COURTS

SHOULD REFOCUS THE FIFTH AMENDMENT

TAKINGS ANALYSIS

Timothy M. Harris*

The 2020 Coronavirus Pandemic and the ensuing shutdown of

private businesses—to promote the public’s health and safety—

demonstrated the wide reach of state and local governments’ police

power. Many businesses closed and many went bankrupt as various

government programs failed to keep their enterprises afloat.

These businesses were shut down to further the national interest

in stemming a global pandemic. This is an archetypal example of

regulating for the public health—preventing a direct threat that sickened

hundreds of thousands of Americans. But some businesses were

disproportionately hit while others flourished. Many who bore the brunt

of these regulations sued, alleging their property was taken by the

government without just compensation. These unfortunate businesses

and individuals are unlikely to be successful, absent arbitrary action by

the government, a physical invasion, or other egregious circumstances.

The Takings Clause is therefore woefully inadequate to provide

what Aristotle called “distributive justice”—the equal distribution of

benefits and burdens throughout society. Courts should therefore refocus

the takings analysis to ensure fairness and justice by considering whether

a regulation has a disproportionate, catastrophic, and sudden impact.

Adjunct Professor of Law, Seattle University School of Law. B.A., M.A. University of

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456 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 54:455

TABLE OF CONTENTS

I. INTRODUCTION.......................................................................... 457

II. BACKGROUND ......................................................................... 458

III. FIFTH AMENDMENT TAKINGS LAW ......................................... 462

A. Penn Central’s Ad Hoc Three-Part Balancing Test ....... 463

B. Lucas’s Total Deprivation Test ..................................... 465

C. Loretto’s Physical Invasion Test.................................... 467

D. Temporary Takings ....................................................... 469

E. The Public Health and Safety Exception to Takings

Claims ......................................................................... 472

IV. DUE PROCESS/EQUAL PROTECTION ......................................... 476

V. THE CORONAVIRUS PANDEMIC AND GOVERNMENT ACTION ...... 480

VI. MOVING FORWARD: ADVANCING DISTRIBUTIVE JUSTICE AND

THE ARMSTRONG PRINCIPLE ................................................. 483

VII. CONCLUSION......................................................................... 493

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I. INTRODUCTION

The 2020 Coronavirus/Covid-19 pandemic shutdown—in which

state and local governments closed thriving businesses to stem the

spread of disease—disproportionately affected those business owners

whose livelihoods depend on human contact. Hair salons, restaurants,

bars, and movie theaters were shuttered,

while grocery stores, home

office suppliers, and technology companies flourished.

Those human

contact businesses carried a lopsided societal burden through no fault

of their own.

Many affected businesses sued under the Fifth Amendment’s

Takings Clause: “nor shall private property be taken for public use,

without just compensation.”

Although the plain language of the

Takings Clause would seem to create a viable cause of action, court-

created exceptions for health and safety regulations—coupled with the

temporary nature of the pandemic shutdown—left these businesses

without judicial relief.

The lack of viable takings claims for these disproportionately

affected businesses highlight the inequities of the Fifth Amendment

takings analysis. According to the U.S. Supreme Court, the Takings

Clause was designed to prevent individuals from bearing burdens,

“which, in all fairness and justice, should be borne by the public as a

whole.”

But the cases and judicially-created balancing tests do not

reflect that outcome. Courts should, therefore, refocus and widen the

applicability of takings claims to include relief for entities that have

been suddenly and catastrophically hit by unexpected regulations.

1. See, e.g., Michael McGough, Coronavirus Updates: In California’s New Reopening Plan,

When Can Bars, Theaters Reopen?, SACRAMENTO BEE (Sept. 2, 2020, 9:01 AM), https://www.sa

cbee.com/news/coronavirus/article245433100.html (discussing the closing and reopening of bars,

restaurants, hair salons and card rooms).

2. See, e.g., David J. Lynch, In a Bleak Economy, These Companies Are Flourishing, WASH.

POST (Aug. 11, 2020, 10:40 AM), https://www.washingtonpost.com/business/2020/08/10/recessi

on-coronavirus-pandemic-winners/; Mike Duff, Home Office Lifestyle Trends Accelerated as

Pandemic Spread, HOMEWORLD BUS. (Sept. 16, 2020), https://www.homeworldbusiness.com/ho

me-office-lifestyle-trends-accelerated-as-pandemic-spread-2/

[https://web.archive.org/web/20201214181237/https://www.homeworldbusiness.com/home-

office-lifestyle-trends-accelerated-as-pandemic-spread-2/] (“The home and small office furniture

segment is going through a metamorphosis of sorts, one that has been accelerated by the

coronavirus pandemic in the U.S. . . . .”).

3. U.S. CONST. amend V.

4. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123–24 (1978) (quoting

Armstrong v. United States, 364 U.S. 40, 49 (1960)).

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II. BACKGROUND

In December of 2019, a novel coronavirus began infecting

humans and quickly spread in Wuhan, China.

The World Health

Organization (WHO) declared a global pandemic on March 11, 2020,

after the virus spread to 114 countries and had killed more than 4,000

people.

The first confirmed case in the United States was on

January 21, 2020.

The virus subsequently spread across several

regions of the United States,

and on January 30, the WHO declared a

global health emergency.

The United States reported its first

coronavirus death on February 29, 2020, and on March 13, President

Trump declared a National Emergency.

By March 26, 2020, the

United States led the world in coronavirus cases.

The pandemic

continued through the summer. At the end of September 2020, more

than two hundred thousand died of coronavirus-related illness in the

United States, and the total number of cases approached seven

million.

In March of 2020, governors of forty-five states implemented a

“patchwork of policies,” including full or partial closure of bars,

restaurants, and other non-essential services in response to the global

coronavirus pandemic.

The government’s closure of otherwise

profitable enterprises created catastrophic losses for many business

owners and their employees.

These closures continued for several

5. Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, N.Y. TIMES (Aug. 6,

2020), https://www.nytimes.com/article/coronavirus-timeline.html.

6. Tedros Adhanom, WHO Dir.-Gen., Opening Remarks at the Media Briefing on COVID-

19 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-

remarks-at-the-media-briefing-on-covid-19---11-march-2020/.

7. Taylor, supra note 5.

8. Id.

9. Id.

10. Id.

11. Id.

12. Jeffrey Kluger, Tragic Math: The U.S. Exceeds 200,000 COVID-19 Deaths, TIME

(Sept. 22, 2020, 11:42 AM), https://time.com/5891101/us-coronavirus-deaths-200000/; Chris

Kidd, US Death Rate Tops 200,000 as Cases Approach 7 Million, EURO WEEKLY NEWS (Sept. 19,

2020, 6:23 PM), https://www.euroweeklynews.com/2020/09/19/us-death-rate-tops-200000-as-

cases-approach-7-million/.

13. Suzanne Rowan Kelleher, 45 U.S. States Shut Down and Counting: State-by-State Travel

Restrictions, FORBES (Mar. 28, 2020), https://www.forbes.com/sites/suzannerowankelleher/2020/

03/28/23-states-shut-down-and-counting-state-by-state-travel-restrictions/#54a6d5a358f4.

14. See, e.g., Helen Freund, How 6 Months of Pandemic Have Profoundly Changed Florida’s

Restaurants, TAMPA BAY TIMES (Sept. 20, 2020), https://www.tampabay.com/life-culture/food/

2020/09/20/six-months-of-pandemic-have-profoundly-changed-floridas-restaurants/ (stating that

“[a]cross the country about 100,000 restaurants have either closed permanently or long-term” and

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months, with phased re-openings in the late summer and early autumn

of 2020, with mixed success.

Several businesses and individuals impacted by this government

shutdown sued under the Takings Clause of the Fifth Amendment. In

Connecticut, a lounge owner alleged that Governor Lamont’s order

preventing large gatherings and closing restaurants deprived the owner

of all economically viable use of his property and demanded just

compensation under the Fifth and Fourteenth Amendments.

Florida, beachfront property owners alleged that beach patrols by code

compliance officers constituted a physical invasion because they

occupy private property and prevent residents from entering their own

backyards.

The Florida class-action plaintiffs also argued a

Fourteenth Amendment due process violation, alleging the beach

patrol order was arbitrary and capricious.

In Colorado, a pro se petitioner, who is a restaurant cook, sued

because his work ended due to Governor Polis’s coronavirus

pandemic shutdown, and his free exercise of religion has been

impaired because gatherings of more than ten people were

prohibited.

The petitioner also alleged there is no valid coronavirus

“[c]lose to 3 million employees in the restaurant sector remain out of work”); Josh Mitchell, State

Shutdowns Have Taken at Least a Quarter of U.S. Economy Offline, WALL ST. J. (Apr. 5,

2020), https://www.wsj.com/articles/state-coronavirus-shutdowns-have-taken-29-of-u-s-

economy-offline-11586079001 (“At least one-quarter of the U.S. economy has suddenly gone idle

amid the coronavirus pandemic, an analysis conducted for The Wall Street Journal shows, an

unprecedented shutdown of commerce that economists say has never occurred on such a wide

scale.”); Bethany Jean Clement, James Beard Survey Suggests 4 out of 5 Restaurants May Not

Survive a Prolonged Coronavirus Shutdown—Our Critic on What We Stand to Lose, SEATTLE

TIMES (May 1, 2020, 6:00 AM), https://www.seattletimes.com/life/food-drink/4-out-of-5-

restaurants-may-not-reopen-our-restaurant-critic-on-what-we-stand-to-lose/ (“[Restaurant]

[o]wners report having laid off 91% of hourly workers and nearly 70% of salaried ones.”).

15. See, e.g., Chris Woodyard, ‘Makes No Sense’: California Faces Backlash Over Its New

Tiered System for Reopening Businesses Amid COVID-19, USA TODAY (Sept. 1, 2020, 10:29 AM),

https://www.usatoday.com/story/news/nation/2020/09/01/coronavirus-california-faces-backlash-

over-new-tiered-reopening-plan/3449500001/.

16. Paul Bass, Suit Seeks to Quash Emergency Orders, NEW HAVEN INDEP. (Apr. 7, 2020,

4:08 PM), https://www.newhavenindependent.org/index.php/archives/entry/

covid_lawsuit/.

17. See Complaint at 12, Dodero v. Walton Cnty., No. 3:20-cv-05358-RV-HTC, 2020 WL

1868995 (N.D. Fla. Apr. 6, 2020) [hereinafter Dodero Complaint] (“The County and Sheriff’s

physical appropriation of Plaintiffs’ beachfront properties violates the Plaintiffs’ rights under the

Fifth and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983.”); see also

Dodero v. Walton Cnty., No. 3:20cv5358-RV/HTC, 2020 WL 5879130, at *1 (N.D. Fla. Apr. 17,

2020).

18. Dodero Complaint, supra note 17, at 15.

19. Lawrence v. Colorado, 455 F. Supp. 3d 1063, 1065–69 (D. Colo. 2020); see also Calvary

Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2604–05 (2020) (denying injunctive relief to a

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460 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 54:455

emergency and sought an injunction to end the state’s shutdown

order.

A federal judge denied the injunctive request due to, inter alia,

the emergency nature of the orders.

In California, attorney Mark Geragos

sued Governor Gavin

Newsom for a Fifth Amendment taking, representing, inter alia, a

Mexican restaurant, a special effects lighting company, a pet groomer,

and a gondola service.

Mark Geragos alleged that Governor

Newsom’s Shelter-in-Place Order violated the constitutionally

protected rights to travel, due process, and equal protection as well as

Fifth Amendment takings.

In Maryland, housing providers sought an injunction against laws

that prevented landlords from increasing rents during the pandemic.

The petitioners alleged that these laws constituted a regulatory taking

under both the Federal and Maryland Constitutions.

The federal

court denied the request for an injunction because “the appropriate

remedy for these claims is not equitable in nature.”

Because money

damages were adequate, an injunction was inappropriate.

In Tennessee, the owners of several restaurants filed for a

temporary restraining order to prevent Shelby County from enforcing

a COVID-19 closure order, which required the closure of the

plaintiffs’ establishments.

The court denied the motion for injunctive

church that argued it was entitled to meet under the Free Exercise Clause, despite the governor of

Nevada’s order to the contrary). But see Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct.

63 (2020) (granting injunctive relief to religious entities against Governor Cuomo’s capacity limits

on in-person services).

20. Lawrence, 455 F. Supp. 3d at 1066, 1073.

21. Id. at 1067.

22. Geragos is a celebrity attorney who has represented Michael Jackson, Michael Avenatti,

Susan McDougal, and several other famous and controversial figures. Richard Winton & James

Quealley, Caught Up in Avenatti Scandal, Mark Geragos Finds Himself on the Other Side of the

Law, L.A. TIMES (Mar. 27, 2019, 9:20 AM), https://www.latimes.com/local/lanow/la-me-mark-

geragos-profile-20190327-story.html.

23. Complaint at 6–8, 19, Gondola Adventures, Inc. v. Newsom, No. 2:20-cv-03789 (C.D.

Cal. Apr. 24, 2020).

24. Id. at 6, 19, 21, 22.

25. Willowbrook Apt. Assocs., v. Baltimore, No. SAG-20-1818, 2020 WL 3639991, at *1 (D.

Md. July 6, 2020).

26. Id. at *3.

27. Id. at *4; see also Xponential Fitness v. Arizona, No. CV-20-01310-PHX-DJH, 2020 WL

3971908, at *9 (D. Ariz. July 14, 2020) (“[E]ven if the [Governor’s Executive Order] did violate

Plaintiffs’ Fifth Amendment rights, Plaintiffs would not be entitled to injunctive relief because

damages are the proper remedy for a taking.” (citing Bridge Aina Le’a, LLC v. Hawaii Land Use

Comm’n, 125 F. Supp. 3d 1051, 1066 (D. Haw. 2015))).

28. Willowbrook, 2020 WL 3639991, at *4.

29. TJM 64, Inc. v. Harris, 475 F. Supp. 3d 828, 832 (W.D. Tenn. 2020).

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relief because “Plaintiffs are unlikely to succeed on the merits of their

constitutional claims and given the potential public health

consequences of allowing Plaintiffs to continue to operate their

businesses.”

In Massachusetts (and several other states), local authorities

enacted moratoria on evictions.

Landlords sued seeking to enjoin the

moratorium but were ultimately unsuccessful.

In Massachusetts, the

superior court first rejected the argument that the prohibition on

ejecting tenants constituted a “physical invasion” by the

government.

The court also found that the moratorium did not

interfere with the plaintiffs’ reasonable investment-backed

expectations

and did not, therefore, constitute a taking.

The Pennsylvania Supreme Court—in the first published

appellate case to consider the issue—denied the claims of a

congressional candidate, a real estate agent, a golf course, and a

restaurant.

The parties’ constitutional challenges included a taking

without compensation under the Fifth Amendment.

According to the

court, “the payment of just compensation is not required where the

regulation of property involves the exercise of the Commonwealth’s

police power.”

The outcome was no surprise.

Under the current state of takings law, arguments in favor of a

Fifth Amendment Taking by such plaintiffs are unlikely to be

successful.

The state-mandated closures are temporary, and were put

in place to promote the health, safety, and welfare of society, a core

police power

and an established background principle of property

30. Id. at 841.

31. Memorandum of Decision and Order on Plaintiffs’ Motion for Preliminary Injunction at

3–5, Matorin v. Massachusetts, No. 2084CV01334 (Aug. 26, 2020).

32. Id. at 34.

33. Id. at 20.

34. Id. at 26.

35. Friends of Danny DeVito v. Wolf, 227 A.3d 872, 876–77 (Pa. 2020).

36. Id. at 893.

37. Id.

38. See Bernadette Meyler, Shelter-in-Place Orders Are Perfectly Legal, N.Y. TIMES

(Apr. 29, 2020), https://www.nytimes.com/2020/04/29/opinion/shelter-in-place-constitution.html.

39. See Gibbons v. Ogden, 22 U.S. 1, 203 (1824) (stating that police power is “that immense

mass of legislation, which embraces every thing within the territory of a State, not surrendered to

the general government”).

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462 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 54:455

law. Those regulations also likely kept the early 2020 coronavirus

pandemic from becoming worse.

These health and safety exceptions to otherwise colorable takings

claims are arguably at odds with the plain language of the Fifth

Amendment itself and the Supreme Court’s oft-cited admonition that

the impetus for the Takings Clause is to protect individuals from

shouldering the burdens that society should bear.

Unfortunately, the

coronavirus pandemic shutdown illustrates the inadequacy of takings

law in distributing burdens among individuals particularly impacted

by sweeping government shutdowns.

III. FIFTH AMENDMENT TAKINGS LAW

The Fifth Amendment to the U.S. Constitution provides in part:

“[N]or shall private property be taken for public use, without just

compensation.”

Each clause in this sentence has been heavily

litigated. The focus of this Article is whether private property has been

“taken” such that just compensation is due under the Fifth

Amendment.

“The 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.”

This is a maddeningly vague standard for

litigants.

Many property and business owners allege that social distancing

restrictions and the concomitant shutdowns imposed by the

coronavirus pandemic resulted in their property being “taken” by the

government such that just compensation is due.

The bar, however, is

40. See, e.g., Joel Achenbach, As Social Distancing Shows Signs of Working, What’s Next?

Crush the Curve, Experts Say, WASH. POST (Apr. 8, 2020, 2:11 PM), https://www.washingtonpos

t.com/national/health-science/as-social-distancing-shows-signs-of-working-whats-next-crush-the-

curve-experts-say/2020/04/08/3c720e06-7923-11ea-b6ff-597f170df8f8_story.html.

41. See Armstrong v. United States, 364 U.S. 40, 49 (1960).

42. U.S. CONST. amend. V. The Fifth Amendment applies to the states under the Due Process

Clause of the Fourteenth Amendment. Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226,

239 (1897).

43. This Article involves government imposing restrictions (shutdown order) on the

operations of private entities to restrict gatherings and close personal contact that may further the

spread of the coronavirus. The property is therefore “private” and the purpose (restricting the spread

of the disease) is “public.” The amount of “just compensation” is discussed in footnote 45. The

question addressed by this Article, is whether there is a regulatory “taking” at all.

44. Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

45. Just compensation is “fair market value.” United States v. Miller, 317 U.S. 369, 374

(1943); see also Backus v. Fort St. Union Depot Co., 169 U.S. 557, 573, 575 (1898) (“[W]hen [the]

power [of eminent domain] is exercised it can only be done by giving the party whose property is

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necessarily high for a property owner to prove that “just

compensation” is due when a regulation restricts use, particularly

when the justification for the restriction is a public health and safety

concern. Unfortunately, the test for determining whether a taking has

occurred is a “muddle,”

and pandemic-related regulations are likely

to further the confusion.

A. Penn Central’s Ad Hoc Three-Part Balancing Test

The Fifth Amendment takings analysis begins with the seminal

taking case, Penn Central Transportation Co. v. New York.

In Penn

Central, the owners of Grand Central Station (“Station”) in New York

City sought to partner with UGP Properties (“UGP”) to build a multi-

story office building in the airspace above the Station.

The proposed

project complied with all zoning and building requirements,

but

because the station had been designated as a landmark under the City’s

Landmark Preservation Law, UGP and Penn Central were required to

apply to New York’s Landmark Preservation Committee

(“Committee”) for the requisite “certificate of ‘appropriateness.’”

The Committee denied permission of the plan to cantilever a fifty-five-

story office building over the Station.

Penn Central and UGP challenged the Committee’s decision by

bringing a Fifth Amendment takings claim.

The U.S. Supreme Court

taken or whose use and enjoyment of such property is interfered with, full and adequate

compensation, not excessive or exorbitant, but just compensation.”).

46. See Bradley C. Karkkainen, The Police Power Revisited: Phantom Incorporation and the

Roots of the Takings “Muddle”, 90 MINN. L. REV. 826, 827 (2006) (“Despite a series of high-

profile decisions over the last three decades, the Supreme Court has failed to solve the riddle it

posed for itself in the seminal case of the modern regulatory takings era, Penn Central

Transportation Co. v. City of New York: When does a regulation burdening property rise to the

level of a compensable ‘taking’?”).

47. 438 U.S. 104 (1978).

48. Id. at 116.

49. Id.

50. Id. at 115–17. A certificate of appropriateness will be granted “if the Commission

concludes—focusing upon aesthetic, historical, and architectural values—that the proposed

construction won the landmark site would not unduly hinder the protection, enhancement,

perpetuation, and use of the landmark.” Id. at 112.

51. Id. at 116–17. The Commission also rejected a fifty-three-story proposal that involved

removal of a portion of the Station’s façade. The Commission stated: “To protect a Landmark, one

does not tear it down. To perpetuate its architectural features, one does not strip them off.” Id. at

117.

52. Id. at 122 (“[T]he issues presented . . . are (1) whether the restrictions imposed by New

York City’s law upon appellants’ exploitation of the Terminal site effect a ‘taking’ of appellants’

property for a public use within the meaning of the Fifth Amendment . . . . ”).

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denied the claim, and in doing so articulated a three-part test to

determine whether a taking has occurred. Accordingly:

when a regulation impedes the use of property without

depriving the owner of all economically beneficial use, a

taking still may be found based on a “complex of factors,”

including: (1) the economic impact on the regulation on the

claimant; (2) the extent to which the regulation has interfered

with distinct

investment-backed expectations; and (3) the

character of the governmental action

(the “Penn Central Test”). The Penn Central Test is an “ad hoc

factual inquir[y], designed to allow careful examination and

weighing of all the relevant circumstances.”

In formulating the Penn Central Test, the Court was guided by

the principle set forth in Armstrong v. United States

: the “Fifth

Amendment guarantee . . . [is] designed to bar Government from

forcing some people alone to bear public burdens which, in all fairness

and justice, should be borne by the public as a whole”

(the

“Armstrong Principle”). The Penn Central Court acknowledged there

has been considerable difficulty in identifying a taking under the Fifth

Amendment, and articulated the Penn Central Test to set a formula for

situations where “‘justice and fairness’ require that economic injuries

caused by public action be compensated by the government, rather

than remain disproportionately concentrated on a few persons.”

The Court rejected Penn Central and UGP’s argument that they

were solely burdened and unbenefited by New York’s Landmark

Preservation Law.

According to the Court, this argument “overlooks

53. The Supreme Court later changed the word “distinct” to “reasonable” investment backed

expectations. Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979).

54. Murr v. Wisconsin, 137 S. Ct. 1933, 1943 (2017); see Penn Cent. Transp., 438 U.S. at

124; see also Steven J. Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118 PENN

ST. L. REV. 601, 601 (2014) (arguing that there is a fourth factor—related to the “relevant parcel”—

in the Penn Central Test); Gary Lawson, et. al., “Oh Lord, Please Don’t Let Me Be

Misunderstood!”: Rediscovering the Matthews v. Eldridge and Penn Central Frameworks, 81

NOTRE DAME L. REV. 1, 32 (2005) (arguing there are two factors rather than three).

55. Murr, 137 S. Ct. at 1942 (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302, 322 (2002)).

56. 364 U.S. 40 (1960).

57. Penn Cent. Transp., 438 U.S. at 123–24 (quoting Armstrong v. United States, 364 U.S.

40, 49 (1960)); see also Murr, 137 S. Ct. at 1943 (quoting Palazzolo v. Rhode Island, 533 U.S. 606,

617–18 (2001)).

58. Penn Cent. Transp., 438 U.S. at 124 (emphasis added).

59. Id. at 134–36.

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the fact that the New York City law applies to vast numbers of

structures in the City in addition to the Terminal.”

The fact that a

particular property owner may be more burdened than benefited in a

particular case does not rise to the level of a taking.

“[I]n instances

in which a state tribunal reasonably concluded that ‘the health, safety,

morals, or general welfare’ would be promoted by prohibiting

particular contemplated uses of land, this Court has upheld land-use

regulations that destroyed or adversely affected recognized real

property interests.”

Under Penn Central, the three-part ad hoc balancing test is a

means to determine whether justice and fairness dictate that a taking

has occurred, in harmony with the Armstrong Principle. Absent one of

the exceptions below, a court will apply the Penn Central Test in all

Fifth Amendment takings cases. Most pandemic shutdown litigants

will have to show their situation meets the Penn Central Test, which

is already notoriously difficult.

B. Lucas’s Total Deprivation Test

The Penn Central Test specifically applies to situations in which

a regulation did not deprive the property owner of all economically

viable use of the property.

That situation was later addressed in

Lucas v. South Carolina Coastal Council.

In Lucas, a property owner purchased two waterfront lots in 1986

for $975,000.

The two lots were surrounded by single-family homes,

and Lucas’s were the last two vacant lots on the Isle of Palms, in

Charleston County, South Carolina.

Two years after Lucas

60. Id. at 134.

61. Id. at 133–35; see, e.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915) (the property owner

was more burdened than benefited by the applicable regulation without the court finding a Fifth

Amendment taking); Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) (same); Vill. of Euclid

v. Ambler Realty Co., 272 U.S. 365 (1926) (same); cf. Pa. Coal Co. v. Mahon, 260 U.S. 393, 413

(1922) (“Government hardly could go on if to some extent values incident to property could not be

diminished without paying for every such change in the general law.”).

62. Penn Cent. Transp., 438 U.S. at 125.

63. A recent study found that less than 10 percent of takings cases are successful under a Penn

Central analysis. James E. Krier & Stewart E. Sterk, An Empirical Study of Implicit Takings, 58

WM. & MARY L. REV. 35, 59–60 (2016).

64. Penn Cent. Transp., 438 U.S. at 138 n.36 (“The city conceded at oral argument that if

appellants can demonstrate at some point in the future that circumstances have so changed that the

Terminal ceases to be ‘economically viable,’ appellants may obtain relief.”).

65. 505 U.S. 1003 (1992).

66. Id. at 1006.

67. Id. at 1009, 1038.

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purchased the parcels, the state of South Carolina passed the

Beachfront Management Act that effectively prohibited Lucas from

building on either of his lots.

Lucas sued, alleging a taking of his

property under the Fifth Amendment.

The Court found a taking and

articulated a new test, which constituted a per se exception to the three-

part Penn Central Test.

Under Lucas, a regulation that “denies all economically beneficial

or productive use of land” will require compensation under the

Takings Clause—unless the regulation is consistent with “background

principles of nuisance and property law.”

In other words, if a

regulation eliminates a property’s economic viability, it will

automatically constitute a taking, unless that regulation is consistent

with “background principles” of property law.

This is the first per se

exception to the three-part Penn Central Test.

In Lucas, the U.S. Supreme Court overturned the South Carolina

Supreme Court, which “ruled that when a regulation respecting the use

of property is designed ‘to prevent serious public harm,’ no

compensation is owing under the Takings Clause regardless of the

regulation’s effect on the property’s value,”

citing to Mugler v.

Kansas.

In fact, Lucas did not challenge the assertion that the

beachfront management act protected a valuable resource or that new

construction contributed to the erosion of this public resource.

According to the Lucas court, however, the Beachfront Management

Act denied a previously permissible productive use, and did not

therefore constitute a background principle of property or nuisance

law that would have exempted the state from providing just

compensation.

Since Lucas, however, courts have been progressively reluctant

to find a total deprivation of economically viable use. For example, in

68. Id. at 1007.

69. Id. at 1009.

70. Id. at 1016.

71. Id. at 1016, 1031; see also Horne v. Dep’t of Agric., 576 U.S. 350, 361–62 (2015)

(extending the Lucas “total deprivation” test to a government appropriation of physical property

such as raisins).

72. Lucas, 505 U.S. at 1031.

73. Id at 1031–32.

74. Id. at 1010.

75. 123 U.S. 623 (1887).

76. Lucas, 505 U.S. at 1020.

77. Id. at 1031.

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Leone v. County of Maui,

the Hawaii Supreme Court held that

regulations that leave land in its natural state do not always constitute

a taking,

clarifying that the Lucas rule is not absolute—and the scope

of “background principles” is expanding.

Many litigants affected by the coronavirus government

shutdowns may allege that their property (or business) has suffered a

Lucas-style total deprivation of all economically viable use, but: (1)

the pandemic government shutdowns are temporary (unlike Lucas)

and (2) the public health impetus for the pandemic regulations is likely

more compelling than even the Beachfront Management Act in

Lucas—as a background principle of property law. Such claims are

therefore unlikely to be successful under Lucas.

Mr. Lucas also has a stronger “fairness and justice” argument than

do the coronavirus litigants. Lucas had two empty lots in a large

neighborhood of single-family homes and was singled out to bear the

burden of the Beachfront Management Act, while the coronavirus

litigants represent wide sectors of business interests.

Similarly, the

petitioners in Armstrong itself were a group of government contractors

whose mechanic’s liens were invalidated by the federal government

when a shipbuilder went bankrupt.

Upon the shipbuilder’s

bankruptcy, title to the ship went to the government under the

applicable contract, and since liens are prohibited for public work, the

government had “inchoate title” to the ships.

The Supreme Court

held that the liens constituted a property interest that was unlawfully

“taken” under the Fifth Amendment’s Takings Clause.

C. Loretto’s Physical Invasion Test

Another per se exception to the Penn Central Test is when the

government physically occupies property. In Loretto v. Teleprompter

78. 404 P.3d 1257 (Haw. 2017).

79. Id. at 1274.

80. See Krier & Sterk, supra note 63, at 59–60 tbls. 2–3 (showing a 25.8 percent success rate

for “total wipeout” cases under Lucas); see also Michael C. Blumm & Lucus Ritchie, Lucas’s

Unlikely Legacy: The Rise of Background Principles as Categorical Takings Defenses, 29 HARV.

ENV’T L. REV. 321, 368 (2005) (“[J]udicial use of background principles seem likely to expand, as

government defendants continue to present various categories of Lucas defenses to state and federal

courts.”).

81. Lucas, 505 U.S. at 1006–07.

82. See Armstrong v. United States, 364 U.S. 40, 41–42 (1960).

83. Id. at 42.

84. Id. at 43–44.

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Manhattan CATV Corp.,

a property owner sued over a city

regulation that allowed cable companies to install cable equipment on

buildings.

Although the offending cable boxes were only two by four inches,

along with half-inch wide connecting cable, the Court found that a

permanent physical invasion authorized by government regulation is

always a taking. The Court considered a physical invasion of property

to be a restriction of “an unusually serious character” because it

“effectively destroys” the right to possess, use, and dispose of the

property.

When there is a permanent physical occupation of real

property, “there is a taking to the extent of the occupation, without

regard to whether the action achieves an important public benefit or

has only minimal economic impact on the owner.”

After Loretto, many litigants tried to shoehorn their takings

claims into physical invasions. For instance, in Yee v. City of

Escondido,

a mobile home park owner unsuccessfully claimed that

a rent control ordinance effected a physical taking.

More recently, in

Cedar Point Nursery v. Shiroma,

the Ninth Circuit Court of Appeals

failed to find a valid taking claim under a Loretto physical invasion

theory for a regulation that required business owners to open up their

land to union organizers.

Although a coronavirus litigant is unlikely to be able to show a

true physical invasion, if they could, they would probably have a

successful takings claim because physical invasions are of an

“unusually serious character,” and even temporary physical invasions

are actionable.

85. 458 U.S. 419 (1982).

86. Id. at 421–22.

87. Id. at 426, 435.

88. Id. at 434–35 (emphasis added).

89. 503 U.S. 519 (1992).

90. Id. at 539.

91. 923 F.3d 524 (9th Cir. 2019).

92. Id. at 532–33 (citing PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83 (1980)) (finding

that requiring a shopping center to be a public forum for speech did not constitute a Fifth

Amendment taking). On November 13, 2020, the U.S. Supreme Court granted certiorari in Cedar

Point. See Cedar Point Nursery v. Hassid, No. 20-107, 2020 WL 6686019 (2020) (mem.).

93. Loretto, 458 U.S. at 426, 427, 435 fn.12 (“When faced with a constitutional challenge to

a permanent physical occupation of real property, this Court has invariably found a taking.”). At

least one coronavirus shutdown petitioner has alleged a physical taking—due to beach patrols that

cut off access to private property. See supra note 17 and accompanying text.

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D. Temporary Takings

A regulation need not be permanent to constitute a taking, which

is critical to the analysis of whether coronavirus related government

shutdown restrictions constitute either a regulatory or physical taking

under the Fifth Amendment.

In First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles,

a retreat and recreational center for

handicapped children in Mill Canyon was destroyed after a fire, and

subsequent flooding swept the property.

In response to the flooding

in the canyon, the County of Los Angeles adopted an ordinance which

prohibited construction in the interim flood protection area in Mill

Canyon.

The church alleged a temporary taking, and the Supreme

Court stated that “‘temporary’ takings which, as here, deny a

landowner all use of his property, are not different from permanent

takings, for which the Constitution clearly requires compensation.”

The Court remanded for further proceedings to determine if a taking

had occurred.

On remand, the California court found that there was no Fifth

Amendment taking and therefore the church was not entitled to

compensation.

The court—relying on Mugler—first said that the

ordinance was justified by health and safety concerns; and second, that

the church was allowed to use any buildings that were not destroyed

by flood and it could use the property for any purpose other than

reconstructing demolished buildings or erecting new ones.

100

There

was therefore no temporary taking for the church under either Lucas

or Penn Central.

101

The temporary takings analysis, however, should also be

analyzed in light of Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency,

102

which considered whether a thirty-two-

month moratorium on development constituted a Fifth Amendment

94. 482 U.S. 304 (1987).

95. Id. at 307.

96. Id.

97. Id. at 318.

98. Id. at 322.

99. First Eng. Evangelical Lutheran Church of Glendale v. Cnty. of Los Angeles, 258 Cal.

Rptr. 893, 905–06 (Ct. App. 1989).

100. Id. at 899.

101. Id. at 906.

102. 535 U.S. 302 (2002).

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taking.

103

The plaintiffs in Tahoe-Sierra alleged a Lucas-style per se

taking due to a prohibition on all development in the lake Tahoe region

that was subject to the Planning Agency’s jurisdiction.

104

The Court

held that there was no per se taking based on the denominator or

“parcel as a whole” concept.

105

According to the Court, the ability to

develop a parcel for thirty-two months was only part of a landowner’s

rights because:

Both dimensions must be considered if the interest is to be

viewed in its entirety. Hence, 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. Logically, 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.

106

Therefore, under Tahoe-Sierra, a temporary taking can never be

tantamount to a “total deprivation” under Lucas. However, the Court

left open the possibility of a temporary taking under Penn Central’s

three-part test

107

—although meeting that test will be nearly

impossible.

108

Lower courts have attempted to reconcile Tahoe-Sierra and First

English by identifying the parameters of myriad temporary takings.

According to the United States Court of Appeals for the Federal

Circuit, in Seiber v. United States

109

Supreme Court cases, as well as decisions from our own

court, recognize that a temporary taking may arise in one of

two ways. First, “a temporary taking occurs when what

would otherwise be a permanent taking is temporally cut

short.” Temporary takings of this category may result when

103. Id. at 306.

104. Id.

105. Id. at 331 (“To sever a 32-month segment from the remainder of each fee simple estate

and then ask whether that segment has been taken in its entirety would ignore Penn Central’s

admonition to focus on ‘the parcel as a whole.’” (quoting Penn Cent. Transp. Co. v. City of New

York, 438 U.S. 104, 130–31 (1978))).

106. Id. at 332.

107. Id. at 334 (“[T]he ultimate constitutional question is 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.”).

108. Id.

109. 364 F.3d 1356 (Fed. Cir. 2004).

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“a court invalidates a regulation” that had previously effected

a taking, “when the government elects to discontinue

regulations after a taking has occurred,” or when “the

government denies a permit . . . [and] at some [later] point

reconsiders the earlier denial and grants a permit (or revokes

the permitting requirement).” The “essential element” of this

type of temporary taking “is a finite start and end to the

taking,” In the case of a rescinded permit denial, therefore,

“the initial denial of a permit is still a necessary trigger” for

the temporary taking.

Alternatively, a temporary “taking may occur by reason of

extraordinary delay in [the] governmental decision making”

process. In such a case, a property owner may be entitled to

compensation for property loss incurred while the

government was in the process of deciding whether to allow

the contested activity. This type of temporary takings claim

may be asserted “notwithstanding the failure [of the

government] to deny a permit” or affirmatively prohibit a

certain use of the property. Nonetheless, “mere fluctuations

in value during the process of governmental decision

making, absent extraordinary delay” do not give rise to a

compensable temporary taking under this second category

because such losses are considered “incidents of

ownership.”

110

In other words, to constitute a temporary taking in the coronavirus

regulation context, the enactment of a “stay in place” regulation may

constitute a “triggering event,” and if the stay in place regulation were

stricken down (for example) because it was arbitrary and capricious

and a violation of the Fourteenth Amendment’s Due Process Clause,

or the Equal Protection Clause, there may be a valid takings claim for

the period that the invalid “stay in place” regulation was in effect—if

the landowner was able to prove a taking under Penn Central’s three-

part test.

111

There may also be a valid temporary takings claim if there

110. Id. at 1364–65 (alterations in original) (first quoting Wyatt v. United States, 271 F.3d 1090,

1097 n.6 (Fed. Cir. 2001); then Boise Cascade Corp. v. United States, 296 F.3d 1339, 1347 (Fed.

Cir. 2002) (analyzing a Fifth Amendment takings claim over the denial of a permit to harvest timber

due to the listing of the Spotted Owl under the Endangered Species Act); and then citing Cooley v.

United States, 324 F.3d 1297, 1306 (Fed. Cir. 2003)).

111. Tahoe-Sierra, 535 U.S. at 330.

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is an unreasonable delay or when a government elects to discontinue

a regulation after a taking has occurred.

112

A Lucas-style “total

deprivation” claim for a temporary taking in the coronavirus

government shutdown context is precluded by Tahoe Sierra.

It is also possible to have a temporary taking in the case of a

Loretto physical invasion of property. In Arkansas Game and Fish

Commission v. United States,

113

the U.S. Supreme Court held that a

temporary taking was possible for government-induced seasonal

flooding over the commission’s property.

114

The only issue before the

Court was whether such a claim (a temporary physical invasion) was

categorically exempt from a Fifth Amendment taking claim, and the

Court held that it was not.

115

However, any such claim would still have

to meet the three-part Penn Central Test.

116

E. The Public Health and Safety Exception to Takings Claims

Both Penn Central and Lucas contemplate some sort of exception

to the takings analysis for regulations that concern the general health,

safety and welfare;

117

particularly when such concerns produce a

widespread public benefit and are applicable to “all similarly situated

112. Seiber, 364 F.3d at 1364.

113. 568 U.S. 23 (2012).

114. Id. at 27 (arguing there was a permanent taking due to the destruction of trees on the

flooded property); see Brian T. Hodges, Will Arkansas Game & Fish Commission v. United States

Provide a Permanent Fix for Temporary Takings?, 41 B.C. ENV’T AFFS. L. REV. 365, 365 (2014)

(stating that there are no categorical exemptions to liability for government actions that are

temporary in nature).

115. Ark. Game & Fish Comm’n, 568 U.S. at 38 (“We rule today, simply and only, that

government-induced flooding temporary in duration gains no automatic exemption from Takings

Clause inspection.”).

116. Id. at 39 (noting that under Arkansas Game and Fish, the owner’s reasonable investment-

backed expectations are part of the analysis in determining whether a temporary physical taking is

compensable). For another viewpoint, see Hodges, supra note 114, at 388–92 (arguing that the test

is the same for both temporary and permanent physical takings). See Bridge Aina Le’a, LLC v.

Land Use Comm’n, 950 F.3d 610, 631–33 (9th Cir. 2020) (applying the valuation prong of the

Penn Central Test to a temporary taking and concluding that the valuation evidence weighs strongly

against a taking).

117. See, e.g., Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 125 (1978) (“More

importantly for the present case, in instances in which a state tribunal reasonably concluded that

‘the health, safety, morals, or general welfare’ would be promoted by prohibiting particular

contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely

affected recognized real property interests.”); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1023

(1992) (finding that Hadacheck, Miller, and Goldblatt “are better understood as resting not on any

supposed ‘noxious’ quality of the prohibited uses but rather on the ground that the restrictions were

reasonably related to the implementation of a policy—not unlike historic preservation—expected

to produce a widespread public benefit and applicable to all similarly situated property” (quoting

Penn Cent. Transp., 438 U.S. at 133–34 n.30)).

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property [owners].”

118

Courts have traditionally been deferential

toward local jurisdictions’ authority to regulate for health and safety

under the applicable police power.

119

Therefore, if the government has

enacted a valid regulation for the protection of safety, health, and

welfare, courts will not find a Fifth Amendment taking.

An analysis of the extent of a state’s authority to regulate health

and safety without compensation begins with Mugler v. Kansas,

120

cited by both Penn Central

121

and Lucas.

122

Mugler involved a

challenge to a Kansas constitutional amendment that prohibited the

sale and manufacture of liquor.

123

When the Kansas constitutional

amendment passed, all liquor sales and manufacturing were declared

a common nuisance.

124

After Mugler’s brewery was declared a

nuisance, he claimed “most earnestly and confidently, that his right to

operate his brewery as vested in him by the laws of Kansas, cannot be

taken away by the State without just compensation.”

125

According to

the Mugler Court:

[T]he present case must be governed by principles that do not

involve the power of eminent domain, in the exercise of

which property may not be taken for public use without

118. Lucas, 505 U.S. at 1023 (1992) (quoting Penn Cent. Transp., 438 U.S. at 133–34 n.30).

119. See Mugler v. Kansas, 123 U.S. 623, 661 (1887) (stating that the police powers of a state

“determine, primarily, what measures are appropriate or needful for the protection of the public

morals, the public health, or the public safety,” subject to constitutional limits); Cal. Reduction Co.

v. Sanitary Reduction Works, 199 U.S. 306, 306 (1905) (holding that an ordinance limiting garbage

burning to certain areas was not a compensable taking under the city’s authority to regulate public

health); Goldblatt v. Town of Hempstead, 369 U.S. 590, 592 (1962) (“If this ordinance is otherwise

a valid exercise of the town’s police powers, the fact that it deprives the property of its most

beneficial use does not render it unconstitutional.”); see also id. at 596 (“Our past cases leave no

doubt that [challengers to police power] had the burden on ‘reasonableness.’” (citing Bibb v.

Navajo Freight Lines, 359 U.S. 520, 529 (1959) (arguing that the exercise of police power is

presumed to be constitutionally valid))); Salsburg v. Maryland, 346 U.S. 545, 553 (1954) (“The

presumption of reasonableness is with the State.”); United States v. Carolene Prods. Co., 304 U.S.

144, 154 (1938) (stating that the exercise of police power will be upheld if “any state of facts either

known or which could reasonably be assumed affords support for it”).

120. Mugler, 123 U.S. at 623.

121. Penn Cent. Transp., 438 U.S. at 126 (citing Mugler, 123 U.S. at 623) (upholding law that

prohibited liquor business).

122. Lucas, 505 U.S. at 1010, 1022–23, 1033 (Kennedy, J., concurring). The South Carolina

Supreme Court had rejected Lucas’s takings claim based on a Mugler analysis. See id. at 1010

(“[The South Carolina Supreme Court] ruled that when a regulation respecting the use of property

is designed to ‘prevent serious public harm,’ . . . no compensation is owing under the Takings

Clause regardless of the regulation’s effect on the property’s value.”).

123. Mugler, 123 U.S. at 624.

124. Id.

125. Id. at 637.

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compensation. A prohibition simply upon the use of property

for purposes that are declared, by valid legislation, to be

injurious to the health, morals, or safety of the community,

cannot, in any just sense, be deemed a taking or an

appropriation of property for the public benefit. Such

legislation does not disturb the owner in the control or use of

his property for lawful purposes, nor restrict his right to

dispose of it, but is only a declaration by the State that its use

by any one, for certain forbidden purposes, is prejudicial to

the public interests. . . . 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.

126

The U.S. Supreme Court therefore rejected Mugler’s argument. In

doing so, the Court extended tremendous deference to legislative

authorities in the supervision of public health.

127

Following Mugler, in Miller v. Schoene,

128

the U.S. Supreme

Court denied compensation for a property owner who was forced to

cut down ornamental red cedar trees by the state entomologist because

there was a danger of spreading plant disease to a nearby orchard.

129

Miller challenged the state’s decision under a Fourteenth Amendment

substantive due process theory.

130

According to the Court, “the state

does not exceed its constitutional powers by deciding upon the

destruction of one class of property in order to save another which, in

the judgment of the legislature, is of greater value to the public.”

131

This determination is at the core of every exercise of police power that

affects real property.

132

126. Id. at 668–69 (emphasis added).

127. Id. at 669 (citing Stone v. Mississippi, 101 U.S. 814 (1879)).

128. 276 U.S. 272 (1928).

129. Id. at 277.

130. Id.

131. Id. at 279.

132. Id. at 279–80; see also Hadacheck v. Sebastian, 239 U.S. 394, 414 (1915) (“We must

accord good faith to the city in the absence of a clear showing to the contrary and an honest exercise

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In Goldblatt v. Town of Hempstead,

133

the U.S. Supreme Court—

also following Mugler—denied compensation for a property owner in

Hempstead, New York, who operated a gravel mine within the town’s

limits.

134

The town had enacted a new ordinance regulating dredging

and excavating and subsequently sued a mine owner for failing to

comply with the new law.

135

The mine owners alleged the new law

prevented them from operating their decades-old business and was an

unlawful exercise of police power.

136

The ordinance prohibited a

beneficial use to which the property had been put and was arguably

not even a nuisance.

137

The Goldblatt Court upheld the ordinance

because the interest of the public required it, and the means necessary

to accomplish the purpose were not unduly burdensome.

138

Regulations enacted by states—mostly by governors

139

—in

response to the coronavirus pandemic concern widespread public

health matters and were largely applicable to all similarly situated land

(or business) owners. The health, safety, and welfare cases show

courts will generally defer to legislative and executive authorities in

their supervision of public health.

140

Those determinations, in turn, are

a valid defense to most Fifth Amendment takings cases.

In Luke’s Catering Service, LLC v. Cuomo,

141

the Federal District

Court of the Western District of New York stated:

When faced with a society-threatening epidemic, state

officials are empowered to implement emergency protective

measures that infringe federal constitutional rights. They

of judgment upon the circumstances which induced its action.”). Hadacheck involved a challenge

to the city’s ordinance preventing the manufacture of bricks or operation of a brickyard. Hadacheck

alleged the ordinance took his property without compensation, it did not create a public offense and

violated the Due Process Clause of the Fourteenth Amendment. The Court rejected his argument,

deferring to the legislature’s exercise of its police power. Id. at 413.

133. 369 U.S. 590 (1962).

134. Id. at 591.

135. Id. at 592.

136. Id. at 590–91.

137. Id. at 592.

138. Id. at 594–95 (citing Lawton v. Steele, 152 U.S. 133, 137 (1894)).

139. In Washington state, for example, a governor may enact emergency health and safety

regulations for thirty days. Any extension must be approved by the state legislature. WASH. REV.

CODE ANN. § 43.06.220(4) (LexisNexis 2020).

140. See, e.g., S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613–14 (2020)

(Roberts, C.J., concurring) (stating that when state officials “undertake[] to act in areas fraught with

medical and scientific uncertainties,” their latitude “must be especially broad”; and “where those

broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected . . .

judiciary’”).

141. No. 20-CV-1086S, 2020 WL 5425008, at *1 (W.D. N.Y. Sept. 10, 2020).

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may generally do so at their sole discretion and for so long

as is necessary. And as long as the emergency measures bear

some real or substantial relation to the threatening epidemic

and are not unquestionably a plain invasion of rights, the

efficacy and wisdom of those measures are not subject to

judicial second-guessing.

142

The Luke’s Catering court denied plaintiffs’ request for an

injunction under inter alia Fifth Amendment takings and equal

protection grounds because the plaintiffs failed to demonstrate

“beyond all question, a plain, palpable invasion of rights.”

143

IV. DUE PROCESS/EQUAL PROTECTION

Opponents to many governor-initiated lockdowns claimed that

the actions were “arbitrary” and “capricious.”

144

These are buzz words

for a potential Fourteenth Amendment substantive due process claim,

which may be applied to executive and legislative abuses of power.

145

Generally, to prove a claim under most coronavirus pandemic

regulation objections, a claimant would have to show that the

regulation is not rationally related to a legitimate government

142. Id. at *1.

143. Id. at *6.

144. See, e.g., TJM 64, Inc. v. Harris, 475 F. Supp. 3d 828, 833 (W.D. Tenn. 2020) (“Plaintiffs’

substantive due process challenge alleges that the COVID-19 Closure Order is ‘capricious,

irrational, arbitrary and abusive conduct . . . .’”); see also COVID Thursday Update: Petition Urges

Governor to Lift State of Emergency Order, Outbreak Identified in Concord, CONCORD MONITO

R (Apr. 16, 2020, 12:59 PM), https://www.concordmonitor.com/COVID-updates-Thursday-rally-

to-reopen-New-Hampshire-33919268 (petition urged Governor Sununu to rescind declaration of

emergency because “[w]e believe the emergency orders issued by Gov. Sununu are arbitrary and

unbalanced, particularly in determining ‘essential’ and ‘non essential’ organizations and allowing

people to assemble in the supermarket but not in their place of work or community, which are

equally susceptible to transmission of the virus”); Molly Beck & Madeline Heim, GOP Leaders

Seeking to Overturn Tony Evers’ Coronavirus Orders Aren’t Saying What Alternatives They Want,

MILWAUKEE J. SENTINEL (Apr. 23, 2020, 2:29 PM), https://www.jsonline.com/story/news/politic

s/2020/04/23/wisconsin-gop-silent-what-new-coronavirus-rules-should-republican-tony-evers-

gov-democrat-covid-19/3003763001/ (legislators calling for a Department of Health Service Plan

that is not “arbitrary and capricious”).

145. See generally Rosalie Berger Levinson, Reining in Abuses of Executive Power Through

Substantive Due Process, 60 FLA. L. REV. 519, 519 (2008) (“[I]t is well established that the Due

Process Clause includes a substantive component that ‘bars certain arbitrary wrongful government

actions “regardless of the fairness of the procedures used to implement them.”’”).

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objective.

146

One way to do this is to show the government action is

arbitrary and capricious.

147

A substantive due process claim is separate and distinct from the

takings claim procedures outlined above.

148

However, a coronavirus

pandemic shelter-in-place order that reaches the notoriously difficult

arbitrary and capricious threshold may, in turn, be a basis for a

temporary taking for the time that the regulation was in effect. In other

words, if an emergency order was shown to have no rational relation

to a legitimate government objective (by showing the regulation is

arbitrary and capricious), the property or business owner may be able

to obtain damages for the time that the regulation was in effect and the

time the regulation was struck down.

149

However, the claimant would

still then have to show that the claimant met the three Penn Central

146. Nectow v. City of Cambridge, 277 U.S. 183, 187–88 (1928) (“[A] court should not set

aside the determination of public officers unless it is clear that their action ‘has no foundation in

reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the

public health, the public morals, the public safety or the public welfare in its proper sense.’”

(quoting Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926))).

147. See Cnty. of Butler v. Wolf, No. 2:20-cv-677, 2020 WL 5510690, at *26 (W.D. Pa.

Sept. 14, 2020) (finding that the government’s orders closing all “non-life-sustaining” businesses

were arbitrary in creation, scope, and administration—and therefore in violation of substantive due

process). According to the Butler court, “the right of citizens to support themselves by engaging in

a chosen occupation is deeply rooted in our nation’s legal and cultural history and has long been

recognized as a component of the liberties protected by the Fourteenth Amendment.” Id. at *25.

148. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 529 (2005).

149. Unless the claim relates to a fundamental right or to, inter alia, a suspect class. Although

a discussion of every potential constitutional right affected is beyond the scope of this Article, other

claims that the stay-at-home orders are unconstitutional center on First Amendment rights of

expression and association and free exercise of religion as well as civil liberties and privacy. See,

e.g., Three Southern California Churches Sue Gov. Newsom Over Coronavirus Orders, L.A. TIMES

(Apr. 13, 2020, 7:59 PM), https://www.latimes.com/california/story/2020-04-13/three-southern-

california-churches-sue-gov-newsom-over-coronavirus-orders (“[The] churches . . . argu[ed] that

social distancing orders violate the 1st Amendment right to freedom of religion and assembly.”);

Kiah Collier et al., Despite Coronavirus Risks, Some Texas Religious Groups Are Worshipping in

Person—With the Governor’s Blessing, TEX. TRIB. (Apr. 2, 2020, 5:00 PM),

https://www.texastribune.org/2020/04/02/texas-churches-coronavirus-stay-open/ (“Texas is far

from the only state to deem religious services essential; more than a dozen others have done so,

according to the National Governors Association.”). In Roman Catholic Diocese of Brooklyn New

York v. Cuomo, the U.S. Supreme Court granted a church’s application for an injunction because

restrictions to church attendance were “not ‘neutral’ and of ‘general applicability’”—such

restrictions “must satisfy ‘strict scrutiny,’ and this means they must be ‘narrowly tailored’ to serve

a ‘compelling state interest.’” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67

(2020) (quoting Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 508 U.S. 520, 546

(1993)).

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factors to be compensated for a Fifth Amendment taking. A Lucas-

style total deprivation claim is likely precluded by Tahoe Sierra.

150

Proving such a claim is, in general, going to be wildly unlikely.

151

There is, however, a narrow precedent for striking down regulations

that fail to advance health and safety laws. In Nectow v. City of

Cambridge,

152

the U.S. Supreme Court examined a zoning regulation

in terms of the advancement of police powers of the health, safety, and

general welfare of the inhabitants of the City of Cambridge,

Massachusetts.

153

Nectow was a due process claim case wherein the

property owner argued that a zoning regulation, as applied, “deprived

him of his property without due process of law in contravention of the

Fourteenth Amendment.”

154

The City of Cambridge had zoned part of

Nectow’s property as residential, but a special master found that the

zoning would not promote the “health, safety, convenience, and

general welfare of . . . that part of the . . . city,”

155

because the

surrounding properties were put to industrial and railroad purposes

and there “would not be adequate return on the . . . investment for the

development of the property.”

156

The zoning regulation was struck

down.

157

Nectow is important because it finds that a zoning regulation, as

applied, failed to advance health and safety regulations and was

therefore struck down under the Fourteenth Amendment. However, in

determining whether an executive decision is arbitrary and capricious,

courts generally set an exceedingly high standard—behavior must

“shock the conscience” or constitute the “most egregious official

conduct.”

158

This standard will be extraordinarily—but not

150. Friends of Danny DeVito v. Wolf, 227 A.3d 872, 895 (Pa. 2020); see also Nat’l

Amusements Inc. v. Borough of Palmyra, 716 F.3d 57 (3d Cir. 2013) (finding no Fifth Amendment

taking under Tahoe Sierra for a five-month shutdown of an open-air flea market because of safety

concerns related to unexploded munitions from a weapons testing facility).

151. See generally Joseph D. Richards & Alyssa A. Ruge, Most Unlikely to Succeed:

Substantive Due Process Claims Against Local Governments Applying Land Use Restrictions, 78

FLA. BAR J. 34 (2004) (discussing why substantive due process claims against local governments

applying land use restrictions are typically very unlikely to succeed).

152. 277 U.S. 183 (1928).

153. Id. at 184.

154. Id. at 185.

155. Id. at 187 (citation omitted).

156. Id. (citation omitted).

157. Id. at 188–89.

158. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); Nestor Colon Medina &

Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992) (noting that the “shocks the conscience”

standard “[leaves] the door slightly ajar for federal relief [only] in truly horrendous situations”).

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impossibly—difficult to meet in the coronavirus global pandemic

government shutdown context. Shutting down restaurants and hair

salons, for example, has a direct correlation to promoting social

distancing, which is critical to stop the spread of disease.

159

substantive due process claim is therefore unlikely to be successful in

the coronavirus government shutdown context.

Similarly, there is little hope for petitioners alleging a procedural

due process violation. Generally, before a property right is taken, one

must be given notice and an opportunity to be heard before a neutral

decisionmaker.

160

However, “where the State acts to abate an

emergent threat to public safety, postdeprivation process satisfies the

Constitution’s procedural due process requirement.”

161

A petitioner

would likely have to show there is no relationship between the

prohibited activity and the harm sought to be remedied. Further, the

general right to do business is not recognized as a constitutionally

protected property right that is subject to due process protection.

162

Some aggrieved plaintiffs have also sought to have coronavirus

shutdown orders overturned on Equal Protection grounds. “The Equal

Protection Clause of the Fourteenth Amendment commands that no

State shall ‘deny any person within its jurisdiction the equal protection

of the laws,’ which is essentially a direction that all persons similarly

situated should be treated alike.”

163

Plaintiffs must show disparate

treatment was based on “impermissible considerations such as race,

religion, intent to inhibit or punish the exercise of constitutional rights,

or malicious or bad faith intent to injure a person.”

164

In Lebanon Valley Auto Racing Corp. v. Cuomo,

165

the plaintiffs

sought to invoke the Equal Protection Clause by showing disparate

treatment by comparing the government’s treatment of crowds

attending racetrack events (denied) to crowds attending

159. See Achenbach, supra note 40.

160. See Mathews v. Eldridge, 424 U.S. 319, 348–49 (1976).

161. RBIII, L.P. v. City of San Antonio, 713 F.3d 840, 844 (5th Cir. 2013); see also Gilbert v.

Homar, 520 U.S. 924, 930 (1997) (“[W]here a State must act quickly, or where it would be

impractical to provide predeprivation process, postdeprivation process satisfies the requirements of

the Due Process Clause.”).

162. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675

(1999).

163. City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 439 (1985) (quoting Plyler v.

Doe, 457 U.S. 202, 216 (1982)).

164. Harlen Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (quoting

LaTrieste Rest. & Cabaret v. Vill. of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994)).

165. 478 F. Supp. 389 (N.D.N.Y. 2020).

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demonstrations and riots (permitted).

166

Their appeal for an injunction,

however, was denied because there must be specific facts to show

“that the comparators are ‘similar in relevant respects.’”

167

According

to the court, there was insufficient equivalence between private,

capacity-limited venues on one hand and attendees of public protests

on the other.

168

Finally, government orders to shut down thriving businesses may

have been enacted without the requisite constitutional authority. In

Wisconsin Legislature v. Palm,

169

the Wisconsin Supreme Court

struck down an order issued by the state Department of Health

Services (DHS) that required closure of all non-essential

businesses.

170

The court found that in enacting the order, the

Wisconsin DHS was required to follow statutory rule-making

procedures and failed to do so, and therefore, the penalties for

noncompliance were invalid;

171

and that the DHS exceeded its

authority under the applicable health regulations.

172

V. THE CORONAVIRUS PANDEMIC AND GOVERNMENT ACTION

The government’s forced shutdown of otherwise thriving

businesses helped control the pandemic and stemmed an otherwise-

catastrophic loss of life.

173

Most states enacted sweeping shutdown and shelter-in-place

regulations that limited commerce and outdoor activities. In

Pennsylvania, for example, after declaring a disaster emergency

Governor Wolf issued an executive order on March 19, 2020, closing

all businesses that were not life-sustaining.

174

Restaurants and bars

were singled out for closure, although permitted to offer carry out,

166. Id. at 399.

167. Id. at 398 (quoting Lilakos v. New York City, 808 Fed. App’x. 4, 8 (2d Cir. 2020)).

168. Id. But see Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2608–10 (2020)

(Alito, J., dissenting) (arguing that allowing casino to operate in Nevada while prohibiting church

gatherings constituted unlawfully disparate treatment).

169. 942 N.W.2d 900 (Wis. 2020).

170. Id. at 906, 918 (ordering, inter alia, “‘[a]ll for-profit and non-profit businesses’ to ‘cease

all activities’ except for minimum operations that Palm deemed basic”).

171. Id. at 918.

172. See id. (“We further conclude that Palm’s order confining all people to their homes,

forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02,

upon which Palm claims to rely.”).

173. See Achenbach, supra note 40.

174. Friends of Danny DeVito v. Wolf, 227 A.3d 872, 876–77 (Pa. 2020).

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drive through, and delivery business.

175

These businesses were closed

expressly to “prevent the spread of COVID-19 by limiting person-to-

person interactions through social distancing.”

176

In Washington, Governor Inslee similarly directed all residents to

stay at home “except as needed to maintain continuity of operations of

essential critical infrastructure sectors and additional sectors as the

State Public Health Officer may designate as critical to protect health

and well-being of all Washingtonians,” shutting down all non-

essential businesses, including restaurants and bars, who were

permitted to do take-out business.

177

In California, Governor Newsom declared a State of Emergency

on March 4, 2020.

178

On March 19, 2020, he “order[ed] all individuals

living in the State of California to stay home or at their place of

residence except as needed to maintain continuity of operations of the

federal critical infrastructure sectors.”

179

Governor Newsom’s Order

singled out for closure: dine-in restaurants, bars and nightclubs,

entertainment venues, gyms and fitness studios, public events and

gatherings, convention centers, and hair and nail salons.

180

The order

also listed a number of approved outdoor activities.

181

In late August,

the Governor unveiled a new plan to implement phased re-openings

on a county-by-county basis.

182

175. Id. at 879. The Governor took steps to ensure that similarly situated entities would be

treated the same by employing a federal classification system of business sectors.

176. Id. at 880.

177. Proclamation, Stay at Home—Stay Healthy, Proclamation 20-25 by Wash. Governor Jay

Inslee app. at 1 (Mar. 23, 2020), https://www.governor.wa.gov/sites/default/files/WA%20Essenti

al%20Critical%20Infrastructure%20Workers%20%28Final%29.pdf.

178. Proclamation of a State of Emergency by Cal. Governor Gavin Newsom (Mar. 4, 2020),

https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf.

179. Cal. Exec. Order, Executive Order N-33-20 by Cal. Governor Gavin Newsom (Mar. 19,

2020), https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf.

180. Mary Blyth Jones, Gavin Issues Stay-At-Home Orders for Entire State, COALINGA PRESS

(Mar. 19, 2020), https://coalingapress.org/2020/03/19/executive-order-n-33-20/.

181. See, e.g., Alix Martichoux, California Shelter-in-Place: State Issues Weirdly Specific List

of Allowed Outdoor Activities, ABC 7 NEWS (May 1, 2020), https://abc7news.com/california-list-

of-outdoor-activities-is-tennis-allowed-in-may-near-me/6143855/.

182. See Alexei Koseff & Catherine Ho, California’s New Rule for Coronavirus Reopenings:

It’s Not All or Nothing, S.F. CHRON. (Aug. 31, 2020, 11:10 AM), https://www.sfchronicle.com/p

olitics/article/California-s-new-rules-for-coronavirus-15522578.php (“Under the plan, unveiled

[Aug. 28, 2020] by Gov. Gavin Newsom, counties will be placed into four color-coded tiers—

purple, red, orange and yellow, in descending order of severity—based on the prevalence of the

coronavirus in their communities and gradually move through those levels. Restrictions on business

and public life will be eased as transmission drops.”).

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In hard-hit New York, Governor Cuomo issued a “New York

State on Pause” order on March 20, 2020.

183

All non-essential

businesses were closed, and any non-essential gatherings of any size

for any reason were cancelled or postponed.

184

Some steps were taken to mitigate the harm to hard-hit

businesses, with mixed success. Congress passed the Coronavirus Aid,

Relief, and Economic Security (CARES) Act,

185

which, inter alia,

provided direct payment to individuals, extended unemployment

benefits, allowed employers to delay paying some taxes, eased

retirement fund restrictions, and paused student loan interest.

186

The

CARES Act also provided $350 billion to prevent layoffs and small

business closures during the coronavirus pandemic shutdown.

187

The

small business administration enacted the “paycheck protection

program”—a sweeping forgivable loan program for small

businesses.

188

Many jurisdictions enacted legislation prohibiting evictions for

both residential and commercial tenants.

189

However, even in states

183. Ryan W. Miller & Marco della Cava, Coronavirus Updates: U.S. Infections Approach

20,000; NY, Illinois Unleash Strict Rules; 150 Detroit Cops Quarantined, USA TODAY (Mar. 20,

2020, 5:36 AM), https://www.usatoday.com/story/news/health/2020/03/20/coronavirus-updates-

us-deaths-cases-stay-home-order-trump/2880695001/.

184. See N.Y. Exec. Order, Executive Order 202.28, Continuing Temporary Suspension and

Modification of Laws Relating to the Disaster Emergency, by N.Y. Governor Andrew Cuomo

(Mar. 20, 2020), https://www.governor.ny.gov/news/no-20228-continuing-temporary-suspension-

and-modification-laws-relating-disaster-emergency.

185. Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281

(2020).

186. Leon LaBrecque, The CARES Act Has Passed: Here Are the Highlights, FORBES (Mar. 29,

2020, 7:00 AM), https://www.forbes.com/sites/leonlabrecque/2020/03/29/the-cares-act-has-

passed-here-are-the-highlights/#67757e8768cd; Zack Friedman, Your Student Loans Are Due

January 1, FORBES (Nov. 10, 2020, 2:45 PM), https://www.forbes.com/sites/zackfriedman/2020/

11/10/your-student-loans-are-due-january-1-here-are-5-potential-scenarios/?sh=597a56423ec3.

187. LaBrecque, supra note 186.

188. See Andy Puzder, Despite the Rocky Publicity, the Small-Business Loan Program Is Really

Working, WASH. POST (Apr. 30, 2020, 2:38 PM), https://www.washingtonpost.com/opinions/des

pite-the-rocky-publicity-the-small-business-loan-program-is-really-

working/2020/04/30/970357ce-8b0e-11ea-9dfd-990f9dcc71fc_story.html (“On April 3, the Small

Business Administration launched the PPP with $349 billion. The SBA’s most recent report says

that through April 16, the agency approved nearly 1.7 million loans through 4,975 lenders,

depleting the entire fund.”). The Trump Administration also limited evictions for residential

tenants. Kelly Anne Smith & Lisa Rowan, Trump’s Eviction Moratorium Aims to Protect Renters,

but Evictions Continue, FORBES (Sept. 14, 2020, 4:54 PM), https://www.forbes.com/advisor/pers

onal-finance/trumps-eviction-moratorium-aims-to-protect-renters-but-evictions-continue/.

189. See Fact Sheet, COVID-19 Relief Programs for Businesses and Employers, by Paul,

Weiss, Rifkind, Wharton & Garrison, LLP (Aug. 31, 2020), https://www.paulweiss.com/media/3

979787/covid-19-relief-programs-for-businesses-and-employers.pdf; Dan Keating & Lauren

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that limited evictions, many renters still face eviction, and the eviction

prohibitions are time limited, which may be little help to many small

businesses who were shut during the pandemic.

190

VI. MOVING FORWARD: ADVANCING DISTRIBUTIVE JUSTICE AND THE

ARMSTRONG PRINCIPLE

Takings law is woefully inadequate to compensate individuals

who were harmed by the various government shutdowns during the

coronavirus pandemic—particularly those whose businesses will have

to close permanently due to the shutdown because they are in a

particular class of enterprise that concerns gatherings or close contact,

like hair salons and dine-in restaurants. The plain language of the Fifth

Amendment Takings Clause (“nor shall private property be taken for

public use, without just compensation”

191

)—and the admonition in

Armstrong: “The Fifth Amendment’s guarantee that private property

shall not be taken for a public use without just compensation was

designed to bar Government from forcing some people alone to bear

public burdens which, in all fairness and justice, should be borne by

the public as a whole”

192

—should militate in favor of relief for these

disproportionately affected individuals and businesses.

The Armstrong Principle is rooted in fundamental historic notions

of fairness and justice.

193

This is a central concern of moral

philosophy—“when do the needs of the many outweigh the needs of

the few?“

194

For Aristotle in particular, this was “distributive justice”

Tierney, Which States Are Doing a Better Job Protecting Renters from Being Evicted During the

Coronavirus Pandemic, WASH. POST (Apr. 29, 2020), https://www.washingtonpost.com/nation/2

020/04/29/which-states-are-doing-better-job-protecting-renters-being-evicted-during-coronavirus-

pandemic/?arc404=true; see also Matthew Haag & Conor Dougherty, #CancelRent Is New Rallying

Cry for Tenants. Landlords Are Alarmed., N.Y. TIMES (May 1, 2020), https://www.nytimes.com/

2020/05/01/nyregion/rent-strike-coronavirus.html. But see Emily L. Mahoney, Home Renters

Can’t Get Evicted in Florida, but Small Businesses Can, TAMPA BAY TIMES (Apr. 8, 2020),

https://www.tampabay.com/news/business/2020/04/08/home-renters-cant-get-evicted-in-florida-

but-small-businesses-can/ (“Florida’s statewide moratorium on evictions doesn’t include

businesses. Gov. Ron DeSantis’ order, issued April 2, states that he is suspending the law for

evictions ‘solely as it relates to non-payment of rent by residential tenants due to the COVID-19

emergency.’ The suspension lasts for 45 days.”).

190. Keating & Tierney, supra note 189.

191. U.S. CONST. amend V.

192. Armstrong v. United States, 364 U.S. 40, 49 (1960).

193. Jeffrey M. Gaba, Taking “Justice and Fairness” Seriously: Distributive Justice and the

Takings Clause, 40 CREIGHTON L. REV. 569, 570 (2007).

194. Id. (stating that the issue has “captured the attention of philosophers from Aristotle to Star

Trek’s Mr. Spock”) (citing STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982)).

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484 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 54:455

or the “ethical analysis of the distribution of benefits and burdens in

society.”

195

“[D]istributive justice” is the restoration of proportionate

equality.

196

Goods that determine one’s fortune—like money to pay

rent and employees—that are in limited supply should be distributed

equally.

197

In Aristotle’s words: “[Distributive] justice . . . is that

which is manifested in distributions of honor or money or the other

things that fall to be divided among those who have a share in the

constitution [civil society] . . . .”

198

Aristotle scholars have further

explained that:

The practical effects of distributive justice are considered to

be social solidarity and social stability. Hence, society

allocates goods according to that social rule that best

effectuates the basic purposes of the polity. In this sense,

Aristotle’s conception of distributive justice would be

welfare maximizing. The definitive test of a “just” allocative

rule is that its resulting allocations are proportionate to a

primary social value.

199

In this regard, forcing segments of society—like restaurants and

bars—to shoulder the burdens of society interferes with social stability

and fails to effectuate the best interests of society.

Applying Aristotle’s notion of “distributive justice” (and the

Armstrong Principle) is notoriously difficult generally, but

particularly so in the coronavirus shutdown of small business context.

Courts are ill suited to determine the complex notions of which groups

195. Id. (“In Aristotelian terms, this is the issue of ‘distributive justice’ or the ethical analysis

of the distribution of benefits and burdens in society.”).

196. ARISTOTLE, NICOMACHEAN ETHICS bk. IV, at ch. 4 (William David Ross trans., Oxford,

The Clarendon Press 1908) (c. 384 B.C.E.) (ebook); cf. James E. Krier & Christopher Serkin, Public

Ruses, 2004 MICH. ST. L. REV. 859, 859(arguing that justice would be served through increased

compensation in eminent domain cases when there is little evidence of public use).

197. See Dana Neaçsu, A Brief Critique of the Emaciated State and Its Reliance on Non-

Governmental Organizations to Provide Social Services, 9 N.Y. CITY L. REV. 405, 418 (2006);

Kathryn Heidt, Corrective Justice from Aristotle to Second Order Liability: Who Should Pay When

the Culpable Cannot?, 47 WASH. & LEE L. REV. 347, 351 (1990) (“The aim of distributive justice

is to establish or provide a method of establishing a proportion according to which the members of

society will share so that the most deserving will be entitled to the most, and the least deserving to

the least.”).

198. ARISTOTLE, supra note 196, bk. V, at ch. 2; cf. Judith A. Swanson, Michael J. Sandel’s

Justice: What’s the Right Thing to Do? A Response of Moral Reasoning in Kind, With Analysis of

Aristotle and Examples, 91 B.U. L. REV. 1375, 1385 (2011) (“As Aristotle says, doing the right

thing requires doing it at the right time, in the right way, to the right people . . . .”).

199. Elbert L. Robertson, A Corrective Justice Theory of Antitrust Regulation, CATH. U. L.

REV. 741, 743–44 (2000).

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should pay a “fair share” or “equal distribution” in fighting the

coronavirus.

200

The government shutdown during the coronavirus

pandemic unquestionably represents an exercise of the government’s

police power to regulate the health, safety, and welfare of the

community. But the three-part Penn Central Test does not adequately

account for equal distribution of burdens.

Yet the Armstrong Principle is the ostensible impetus for the

three-part Penn Central Test:

The question of what constitutes a “taking” for purposes of

the Fifth Amendment has proved to be a problem of

considerable difficulty. While this Court has recognized that

the “Fifth Amendment’s guarantee . . . [is] designed to bar

Government from forcing some people alone to bear public

burdens which, in all fairness and justice, should be borne

by the public as a whole,” [citing Armstrong], this Court,

quite simply, has been unable to develop any “set formula”

for determining when “justice and fairness” require that

economic injuries caused by public action be compensated

by the government, rather than remain disproportionately

concentrated on a few persons [citing Goldblatt]. Indeed, we

have frequently observed that whether a particular restriction

will be rendered invalid by the government’s failure to pay

for any losses proximately caused by it depends largely

“upon the particular circumstances [in that] case.

In engaging in these essentially ad hoc, factual inquiries, the

Court’s decisions have identified several factors that have

particular significance. The economic impact of the

regulation on the claimant and, particularly, the extent to

which the regulation has interfered with distinct investment-

backed expectations are, of course, relevant considerations.

So, too, is the character of the governmental action. A

200. See Huntington Beach City Council v. Superior Ct., 115 Cal. Rptr. 2d 439, 452 (Ct. App.

2002) (“You can get a Ph.D. in political science studying what ‘fair shares’ are and still not come

to any firm conclusion. The subject has occupied political philosophers since at least Aristotle,

who, in addressing the subject of ‘distributive justice,’ began a long tradition in political philosophy

of thinking about exactly what do you mean by ‘fair’ in ‘fair share.’ It is one of those topics that is

particularly suited for the marketplace of ideas.”); see also Gaba, supra note 193, at 575 (“[T]he

Supreme Court has never seriously explored the implications of viewing the Takings Clause in

terms of distributive justice. Indeed, the Court seems to have shied away from any serious

analysis.”).

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486 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 54:455

“taking” may more readily be found when the interference

with property can be characterized as a physical invasion by

government, than when interference arises from some public

program adjusting the benefits and burdens of economic life

to promote the common good.

201

Any “set formula”

202

for determining whether “justice and fairness”

dictate that a business owner should be compensated because their

property has been “taken” should include an express recitation of the

Armstrong Principle as a determinative fourth Penn Central factor

when one group has been called upon to bear burdens that should be

borne by society as a whole.

203

As a practical matter, the Armstrong

Principle is repeatedly cited by courts, but is practically never a

determinative factor in deciding whether, for example, a Fifth

Amendment taking has occurred.

204

It should be.

205

The coronavirus

201. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123–24 (1978) (first and fourth

alterations in original) (emphasis added) (citations omitted); cf. Lucas v. S.C. Coastal Council, 505

U.S. 1003, 1071 (Stevens, J. dissenting) (“[T]he determination whether a law effects a taking is

ultimately a matter of ‘fairness and justice,’ [citing Armstrong] and ‘necessarily requires a weighing

of private and public interests’ [citing Agins v. City of Tiburon, 447 U.S. 255, 261 (1980)]. The

rigid rules fixed by the Court today clash with this enterprise: ‘fairness and justice’ are often

disserved by categorical rules.”).

202. Penn Cent. Transp., 438 U.S. at 124. Although Penn Central refers to a “set formula,” “no

magic formula enables a court to judge, in every case, whether a given government interference

with property is a taking.” Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 31 (2012).

203. See contra Michael Pappas, The Armstrong Revolution, 76 MD. L. REV. ENDNOTES 35, 45

(2016) (stating that the Armstrong Principle “cannot serve as a meaningful test to determine

whether property has been taken”). According to Pappas, “the inquiry as to whether a taking has,

in fact, occurred should incorporate no comparative fairness question. It should merely ask whether

regulation has gone too far in reducing property expectations.” Id.

204. See id. at 43–44 ([A]n analysis of all citations to the Armstrong principle in lower federal

courts and state courts indicates the same result: that the Armstrong principle is oft-cited but never

the ultimate grounds for resolving a case. These cases citing Armstrong tend to fall into one of four

categories. First, some cases simply cite and repeat the Armstrong principle, usually as a general

tenet of takings law. Second, some cases cite the Armstrong principle as a component of one of the

factors in the Penn Central balancing test or cite Armstrong as an addition after applying an

individualist takings measure. Third, some cases cite Armstrong in reliance on its narrow holding

to support the assertion that liens or comparable types of property amount to property interests for

the purposes of the takings clause. Finally, a fourth set of cases cites Armstrong for the general

propositions that the destruction or seizure of valuable property can amount to a taking but that not

every government action affecting property is necessarily a taking. There are also cases that fall

outside of these categories, but, again, none applies Armstrong as the primary (or even major)

source of reasoning or decision in a case. Of all these cases, none of them offers a robust or even

meaningful application of the Armstrong principle as a test for whether a taking has occurred.); cf.

Stephen Durden, Unprincipled Principles: The Takings Clause Exemplar, 3 ALA. C.R. & C.L. L.

REV. 25, 45 (2013) (stating that the Supreme Court embraces Armstrong “at least occasionally”).

205. “[T]he Supreme Court has never seriously explored the implications of viewing the

Takings Clause in terms of distributive justice.” Gaba, supra note 193, at 575. Rather, “the Court

seems to have shied away from any serious analysis,” and continues to “resort[] to the same ad hoc

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shutdowns have exposed a glaring inadequacy in the way takings

claims are evaluated.

Employing the new and expanded test will not, by any means,

open the floodgates of compensation for aggrieved property and

business owners, nor unfortunately, will it directly help those who

have lost their jobs due to the coronavirus pandemic shutdown. It may

extend the possibility of a decision that considers distributive justice

in determining whether a property interest has been “taken,” in

instances where there is a glaring inequity in distributive justice.

206

This is particularly true, in the “category of cases in which . . . .

unanticipated regulations destroy a significant portion of the total

assets of a property owner.”

207

In many situations, the coronavirus

pandemic government shutdown of small businesses that depend on

“social distancing” is just such a category of cases.

Expanding takings law by adding a determinative factor to the

Penn Central Test for unexpected catastrophic regulations will better

allow those affected to be heard. The static three-part Penn Central

Test does not achieve this goal because it does not expressly balance

societal interests. Since the Penn Central Test represents the

touchstone of nearly all takings analyses, courts would be better

equipped to make just decisions with an expanded and flexible test—

as was originally contemplated in Penn Central.

208

This is particularly

true in the context of the additional burden created by the temporary

takings analysis. Petitioners have the high hurdle of showing that a

balancing.” Id. (noting how, in Palazzolo v. Rhode Island, the Supreme Court merely stated that

the outcome “depends largely ‘upon the particular circumstances’” of the case).

206. See, e.g., id. at 590 (arguing that the U.S. Supreme Court would have reached a different

result in Miller v. Schoene if the Court had considered “fairness” in deciding whether a taking had

occurred (citing Miller v. Schoene, 276 U.S. 272, 280–81 (1928))). Of course, Miller was decided

decades before both Armstrong and Penn Central.

207. William Michael Treanor, The Armstrong Principle, the Narrative of Takings, and

Compensation Statutes, 38 WM. & MARY L. REV. 1151, 1155 (1997). Treanor persuasively argues

that compensation in cases where “the total net worth of a property owner is dealt a disproportionate

blow as a result of a newly instituted government regulation.” Id. at 1156; cf. Sanitation &

Recycling Indus. Inc. v. City of New York, 107 F.3d 985, 993 (2d Cir. 1997) (“Impairment is

greatest where the challenged government legislation was wholly unexpected.”).

208. Cf. Nestor M. Davidson, The Problem of Equality in Takings, 102 NW. U. L. REV. 1, 6–8

(2008) (“There is a strong meta-signal in the Court’s endorsement of Penn Central as the lodestar

of regulatory takings jurisprudence, with its concomitant rejection of rule-based limits on the

government’s ability to redefine property rights. Privileging ad hoc, open-ended analysis commits

the Court—to the consternation of some commentators—to unfolding the doctrine in a pragmatic

common law manner. The Court’s embrace of Justice Brennan’s jurisprudential shrug of the

shoulders in Penn Central does not quite amount to Justice Stewart’s famous I-know-it-when-I-

see-it standard, but it certainly comes close.”).

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488 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 54:455

law is arbitrary or otherwise interfered with a fundamental right—or

having government end a regulation after a taking has occurred—then

would have to meet the Penn Central Test to obtain “just

compensation” for a taking.

209

There should be an exception to this

procedure in the highly unusual situation of when there is a

disproportionately applied, unanticipated and sudden catastrophic

change in the law that destroys nearly all of a property owner’s

holdings—like during a global pandemic and the ensuing “social

distancing” regulations.

Under current law, it is highly unlikely that a petitioner would be

able to get around the health and safety exceptions and/or prove that

the coronavirus government shutdown regulation was otherwise

invalid, or ended after a taking occurred (effecting a temporary

taking), but if so, an aggrieved party may still have a viable Penn

Central argument.

210

Under Penn Central, the petitioner would first

have to show interference with reasonable investment-backed

expectations. Here, many impacted businesses certainly expected to

be able to continue their businesses in March and April of 2020

without their governors closing their doors due to a global

pandemic.

211

There is a demonstrable interference with investment

backed expectations. Next, the petitioner would have to show a

diminution in value. Again, this should not be a problem. Appraisers

can quantify the losses from a business closure or other loss

occasioned by the government shutdown.

212

The character of the

209. In such a case, a petitioner might also have a right to compensation under 42 U.S.C. § 1983

(2012) (civil action for deprivation of rights). Section 1983 gives individuals the right to sue state

actors for civil rights or other constitutional violations, including impairment of contract. Id.

210. But see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 421–23, 441

(1982) (holding that a New York state law preventing landlords from collecting fees for cable

installations on their properties was a taking under the Fifth Amendment).

211. See, e.g., TJM 64, Inc. v. Harris, 475 F. Supp. 3d 828, 837–38 (W.D. Tenn. 2020). In TJM

64, a federal district court considered whether to grant an injunction and weighed the Penn Central

factors in determining whether the plaintiffs were likely to succeed on the merits of their claim.

The court found that the “[COVID-19 closure Orders] interfere in a significant way with Plaintiffs’

investment-backed expectations in their properties, despite their status as highly regulated entities.”

Id. at 839. The court also found a diminution in value, but ultimately denied the plaintiffs’ motion

based on Penn Central’s character of the government action test. Id.; see also Elmsford Apt.

Assocs., LLC v. Cuomo, 469 F. Supp. 3d 348, at 155 (S.D.N.Y. 2020) (denying a motion for

summary judgment challenging New York’s temporary ban on eviction proceedings under, inter

alia, a takings theory). Under Elmsford, the court found that the petitioners could not reasonably

expect to be free of additional rental regulations like the eviction ban. Id. at 168–69. The court also

found that the character of the government action prong weighed in favor of the defendant because

it was a temporary reallocation of resources. Id. at 167–68.

212. See, e.g., Elmsford., 469 F. Supp. 3d at 166–68.

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government action may be a problem when a shutdown is due to health

and safety concerns,

213

but the actual action—and how it relates to

those burdens—will depend on the circumstances of the case. Finally,

petitioner should be able to show that they have been singled out to

bear a burden that should be borne as a whole—depending on the size

of the affected population.

In the case of an unanticipated regulation that destroys a

significant portion of a property owner’s assets—and the petitioner

carries a disproportionate burden—there should be a more colorable

Fifth Amendment takings argument—even if the regulation is

temporarily related to a health and safety violation. This should be a

high bar for unprecedented situations that single out particular types

of property owners, whose interests are devastated by the

unanticipated regulation,

214

and whose burdens are disproportionate to

the rest of society. The principles of distributive justice call for no less.

Therefore, despite the unquestionably compelling safety and health

concerns militating in favor of shutting down businesses that center

upon social distancing, these industries should not be forced to bear

the brunt of society’s burdens, while other industries flourish

215

during

the coronavirus pandemic.

This raises the question of where to draw the line in determining

whether one group is called upon to sacrifice for the greater good.

Distributive justice cannot be absolute in this context. Armstrong’s

reflection of the principle of distributive justice is clear (as is the plain

language of the Fifth Amendment), yet the U.S. Supreme Court has

213. Id. at 167–69. See Lebanon Valley Auto Racing Corp. v. Cuomo, 478 F. Supp. 3d 389,

402 (N.D.N.Y. 2020) (“[W]ith respect to the third factor—the character of the government action—

the Court begins by noting its power to outweigh the other two.”).

214. See Gaba, supra note 193, at 586–87. Professor Gaba posits an “insurance theory” of

sharing the risk to minimize loss in a takings context. According to Professor Gaba, “insurance is

appropriately employed only to avoid catastrophic loss from unusual and unpredictable events.

Insurance theory indicates that we should not buy insurance to cover relatively small losses that

arise from regular and expected events; it is economically more rational to bear such losses

ourselves.” Id.

215. See Big Tech’s Covid-19 Opportunity, THE ECONOMIST (Apr. 4, 2020)

https://www.economist.com/leaders/2020/04/04/big-techs-covid-19-opportunity (“The pandemic

will have many losers, but it already has one clear winner: big tech. The large digital platforms,

including Alphabet and Facebook, will come out of the crisis even stronger. They should use this

good fortune to reset their sometimes testy relations with their users. Otherwise big government,

the other beneficiary of the covid calamity, is likely to do it for them.”); Jeremy Kress, Big Banks

Are Growing Due to the Coronavirus—That’s an Ominous Sign, THE HILL (May 1, 2020, 7:30

PM), https://thehill.com/opinion/finance/495719-big-banks-are-growing-due-to-coronavirus-

thats-an-ominous-sign.

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490 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 54:455

justifiably limited just compensation in areas where the government

exercises its police power to protect the health safety and welfare of

its residents. According to Justice Oliver Wendell Holmes,

“[g]overnment hardly could go on if to some extent values incident to

property could not be diminished without paying for every such

change in the general law.”

216

The population, therefore, of affected

individuals entitled to compensation cannot be so large that it

interferes with government’s ability to go on.

Permitting widespread takings for coronavirus pandemic

shutdowns may also incentivize businesses to engage in risky behavior

by remaining open to get shut down by the government and

subsequently receive compensation. Even if this strategy were

successful, the government would still retain the ability to shut down

businesses, it would just have to pay “just compensation” for doing

so.

217

This is, after all, the touchstone of the Fifth Amendment’s plain

language.

Zoning changes, and health and safety regulations practically

always affect one’s use of property and therefore reduce the value of

property.

218

There is also no question that the government shutdown

to avert a global pandemic represents a legitimate—even a

compelling—public interest. The critical question in determining

compensation lies in “distributive justice,” which should be reflected

in an overriding—and determinative—factor in the Penn Central

Test

219

in cases where regulations are disproportionately applied,

unanticipated, catastrophic, and sudden—and “destroy a significant

portion of the [property owner’s assets].”

220

This approach is

consistent with Armstrong and the ostensible impetus for the Penn

Central Test itself.

216. Pa. Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).

217. See Ilya Somin, Does the Takings Clause Require Compensation for Coronavirus

Shutdowns?, VOLOKH CONSPIRACY (Mar. 20, 2020, 10:20 PM), https://reason.com/2020/03/20/d

oes-the-takings-clause-require-compensation-for-coronavirus-shutdowns/.

218. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 334–

35 (2002) (“[A deprivation of all economic use cannot always be a taking because it] would apply

to numerous ‘normal delays in obtaining building permits, changes in zoning ordinance, variances

and the like’ . . . as well as to orders temporarily prohibiting access to crime scenes, businesses that

violate health codes, fire damaged buildings or other areas we cannot foresee.”).

219. Cf. Treanor, supra note 207, at 1155 (stating that cases in which “unanticipated regulations

destroy a significant portion of the total assets of a property owner” require compensation under

the Armstrong Principle).

220. Id.

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Therefore, there should be two exceptions to this test: (1) when

the subject regulation is mitigating a harm caused by the property

itself; and (2) when the population of similarly affected parties is too

large to constitute a legitimate claim of being “singled out” for

carrying a burden that should be shouldered by society as a whole.

First, there should be no taking for a property that is directly

causing a situation that calls for a sudden and unanticipated regulation.

This exception is analogous to the “background principles” exception

in Lucas. According to Lucas:

[T]he owner of a lake-bed, for example, would not be entitled

to compensation when he is denied the requisite permit to

engage in a landfilling operation that would have the effect

of flooding others’ land. Nor the corporate owner of a

nuclear generating plant, when it is directed to remove all

improvements from its land upon discovery that the plant sits

astride an earthquake fault. Such regulatory action may well

have the effect of eliminating the land’s only economically

productive use, but it does not proscribe a productive use that

was previously permissible under relevant property and

nuisance principles.

221

In this regard, properties that cause the harm that the sudden regulation

is enacted to protect is akin to a nuisance that does not otherwise

deserve protection

222

because it is recognized as a harm to society. In

the coronavirus shutdown context, many petitioners have argued that

their offending regulations have little bearing on reducing the

transmission of disease. Such claimants should have an opportunity to

have their interests balanced in a takings test before a court.

Second, the population of affected parties entitled to

compensation from a sudden unanticipated and catastrophic regulation

that results in a near total loss of property must be identifiable,

sufficiently narrow, and with nearly similar impacts. To the extent that

a sudden, catastrophic and unexpected regulation wipes out too many

property owners’ values, the relief is no less just, but at that point,

Fifth Amendment takings law—and the Armstrong principle—are not

suited to provide compensation. At some point, the relief is legislative,

221. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029–30 (1992).

222. See Gaba, supra note 193, at 587–88 (discussing “blameworthiness” in assessing the

validity of a takings claim).

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not judicial, and appeals should be to legislators, not to judges.

223

Florida, for example has a statute that mirrors the Armstrong principle.

Under the Bert J. Harris Private Property Rights Protection Act,

compensation is due for regulations that “inordinately burden, restrict,

or limit private property rights.”

224

Under that law, a property is

inordinately burdened when a property owner “bears permanently a

disproportionate share of a burden imposed for the good of the public,

which in fairness should be borne by the public at large.”

225

However,

an “inordinate burden” does not include temporary impacts, or

remediation of a public nuisance.

226

Therefore, an aggrieved property

owner, whose business was shut down by a pandemic regulation

probably has no cause of action under this statute—but it’s a close

model of a legislative fix. The Florida legislature could, for example,

add a clause stating that temporary impacts may be considered for a

taking if the regulations are (1) disproportionately applied; (2)

catastrophic; and (3) unexpected.

Because of these necessary exceptions, the procedures outlined in

this Article will not likely dramatically change the landscape of Fifth

Amendment takings law. State and local governments still have

sweeping power to regulate for the public health, safety, and welfare.

The coronavirus pandemic shutdown is a valid exercise of that power.

The point rather is to focus the shift of the analysis to the benefits and

burdens of regulations that severely harm property interests that are

called upon to shoulder burdens that should be borne by society—in

situations involving a disproportionate, catastrophic and unexpected

loss. Takings law, as currently applied does not adequately reflect

distributive justice or the Armstrong Principle.

Another problem with this approach is that it does little to assist

front-line workers who have been hardest hit by pandemic-initiated

government shutdowns. Those individuals are shouldering

disproportionate burdens (job losses) while other segments of society

223. See, e.g., Treanor, supra note 207, at 1174 (suggesting a compensation statute that tracks,

in part, the Armstrong Principle). The North Carolina legislature proposed a bill that would amend

the state Constitution to allow a business to sue the government when partially or completely closed

by the Governor’s executive order. Richard Craver, N.C., House Bill Would Allow Business Owners

to Sue Over Shutdowns, WINSTON-SALEM J. (May 27, 2020) https://journalnow.com/news/state/n-

c-house-bill-would-allow-business-owners-to-sue-over-shutdowns/article_a2e16a14-2518-5ec2-

9ef3-6264f82e0c19.html.

224. FLA. STAT. ANN. § 70.001 (LexisNexis 2021).

225. Id. § 70.001(e)(1).

226. Id. § 70.001(e)(1)–(2).

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are thriving. The Fifth Amendment takings analysis does little to make

these workers whole, although the expanded analysis suggested here,

taking into account the Armstrong Principle, may dissuade state and

local authorities from closing certain businesses in the first place

which may preserve jobs. Relief for workers and other segments of

society that have been disproportionately burdened otherwise lies with

state and federal legislatures.

227

VII. CONCLUSION

The harm to many small businesses—and their employees—

during the coronavirus government shutdown was widespread, and

frequently catastrophic. Restaurants, gyms, retail, and the travel

industry were particularly devastated, and workers in these industries

may be the least financially able to weather the pandemic’s economic

storm.

228

Unfortunately, absent a showing of arbitrary government action

or a physical invasion, those hardest hit will not be able to receive

compensation under the Takings Clause of the Fifth Amendment,

despite the fact that their livelihood may have been taken (at least

temporarily) without just compensation from the government. This is

true despite the Supreme Court’s admonition in Armstrong and

Aristotle’s concept of distributive justice. Takings Clause

jurisprudence is therefore inadequate to fully compensate individuals

whose property has been “taken” without just compensation. Adding

a determinative factor to the Penn Central Test for situations that are

disproportionate, sudden, and catastrophic may help advance the

interests of those who are bearing more of a burden than should

justifiably be borne by society as a whole.

227. Affected workers may also have a narrow constitutional argument. According to the Third

Circuit Court of Appeals, “[t]he right to hold specific private employment and to follow a chosen

profession free from unreasonable governmental interference comes within both the ‘liberty’ and

the ‘property’ concepts of the Fifth and Fourteenth Amendments.” Piecknick v. Pennsylvania, 36

F.3d 1250, 1259 (3d Cir. 1994) (quoting Greene v. McElroy, 360 U.S. 474, 492, (1959)). However,

“it is the liberty to pursue a calling or occupation, and not the right to a specific job, that is secured

by the Fourteenth Amendment.” Id. (citation omitted).

228. See, e.g., Grant Suneson, Industries Hit Hardest by Coronavirus in the US Include Retail,

Transportation, and Travel, USA TODAY (Mar. 20, 2020, 7:00 AM), https://www.usatoday.com/s

tory/money/2020/03/20/us-industries-being-devastated-by-the-coronavirus-travel-hotels-

food/111431804/ (“[H]ourly workers in sectors like hospitality and retail may be let go as their

companies get less business. This further jeopardizes some of the least financially secure workers

in the country—jobs in these fields are often part-time and typically pay low wages.”).

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