The COVID-19 Constitutional Crisis

The fifth amendment of the Constitution requires the government to pay “just compensation” when it takes private property and uses it for the public good. It says “…nor shall private property be taken for public use, without just compensation.” Does this apply when the government forcefully shuts down private company’s for the common good?

This is no longer just a theoretical question of constitutional law, we are going to see it play out in the courts. Schulmerich Bells, a small business located in Hatfield, PA, has filed a federal lawsuit against Gov. Thomas Wolf’s order issued March 19th that closed all “non-life sustaining” businesses as a response to the covid-19 outbreak. The lawsuit, which can be read here, is challenging the constitutionality of the order. The lawsuit states

“The Governor has placed the cost of these Orders—issued for the benefit of the public—squarely upon the shoulders of private individuals and their families, and has failed to justly compensate affected parties for these takings undertaken for their benefit to the public… These uncompensated seizures violate the Takings Clause of the Fifth Amendment”

One case that has been cited as possible precedence for Gov Wolf’s order is Mugler v. Kansas. In this case the state of Kansas ordered for the production of all “intoxicating beverages” to end. This lead to one liquor company filing a lawsuit against the state citing the 5th amendment. The court ruled against the liquor company stating such government action “does not disturb the owner in the control or use of his property for lawful purposes” They continued saying the governments action was “only a declaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests.” This was a bad ruling and a misreading of the 5th amendment but does not actually apply to this case.

In this case the governor has actually “disturbed the owner in the control or use of his property” by not allowing him or his employees to continue work. Also in the previous case, the liquor company was making a good that the state deemed illegal, in this case the state does not declare the making of handbells illegal.

Because courts have been ruling in favor of more government power recently, it seems Schulmerich Bells has an uphill battle against them. We here at Free Thinking Millennial support you Schulmerich Bells and hope for the right outcome.

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