U.S. Constitution with gavelGovernors across the country have issued executive orders mandating the closure of businesses they deem non-essential in an effort to slow the spread of COVID-19. Slowing the spread of COVID-19, in turn, benefits all the state’s residents. Thus, the owner of the closed business is made to sacrifice the use of his or her property for the good of the general public. Has the state thereby effected a taking under the Fifth and Fourteenth Amendments for which it must compensate the business owner?

There are good arguments for getting to yes. Because the orders would be characterized to effect an alleged regulatory (rather than physical) taking, a fact-intensive, multi-factor analysis applies. While public health and safety justifications would be given substantial weight by the courts, the unprecedented nature of the crisis and sweeping closure orders leave room to develop arguments that the orders effect a taking by barring a select group of property owners from using their property for the good of everyone in the state.

The Takings Clause

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