Do these closure orders constitute eminent domain, being a destruction of private wealth for a public good, and thus merit
compensation? I’d prefer the answer to be “yes,” though as a taxpayer I’d be on the hook for it. Limits on government power even in an emergency are needed. Otherwise government can always manufacture emergencies whenever it wants more power.
In the opinion of this non-constitutional non-scholar, the answer would seem to be "No."
ReplyDeleteThe Takings Clause regards taking private property for public use, not public good. The closures are merely a denial of operation, not a taking, and the denial is to the public as well as the owner. Plus, the clause was conceived regarding a permanent taking, not a temporary denial of access.
Beyond that, for any constitutional fragment that might creep in, the CARES Act looks like it would satisfy the compensation part: it provides for temporary compensations for the temporary denial of access (inadequacy of the compensation seems like the only constitutional argument here), and some of those temporary compensations become permanent (and so arguably overcompensation, but the clause doesn't reach that) if certain actions are taken by those temporarily denied access to their property.
Bankruptcy from the closures? Those are economic outcomes resulting as much from locking down customers as much as they are from telling businesses not to operate.
Eric Hines
As a *legal* argument, I have little doubt you are correct Mr. Hines. I do think however that most people would have the sense that it's right that if the government is going to order businesses to close due to no fault of theirs, then they ought be compensated for the loss of income in much the same way they'd be compensated for property removed from the through eminent domain. The legal lens is not the only lens.
ReplyDeleteI wouldn't give it the time of day in a lawsuit, but as a matter of public policy I don't mind at all shifting extra rewards in the direction of the people who took the brunt for the common good, kind of like the GI Bill.
ReplyDeleteI agree with both of you, but the recompense--even if it does coincide with a Takings compensation--needn't involve a Constitutional question of eminent domain, or any other Constitutional question.
ReplyDeleteIt's simply just, as you both imply, that those harmed by Government fiat in the course of answering an emergency be compensated in some way for having borne the brunt of that harm. Emphasis, as T99 put it, on those who took the brunt, else us customers would warrant compensation, too, for our consortium.
Eric Hines
The economics effects will take until September or even later, to really fix. Consider it like rebuilding Iraq, after an occupation and military campaign has rampaged through the city, as well as the potential problems of insurgencies poping back up.
ReplyDeleteBut if they plan on getting rid of the FEd reserve as sources claim, then this won't be an issue as much. Because "debt" won't be a thing, and one can ensure people can keep on maintaining things for at least a little while without bank interest loans. If they reset the currency off the fiat system this year, that means a currency transfer will need to be placed into effect. In that sense, all the debt and whatever loans businesses now have, will be canceled effectively. In fact, real estate and the service provided by businesses, will be worth a lot more than what they are now in USD.
Since a "canceled currency" will free fall drop into zero value after the exchange is done.
Since much of USD is not in paper but actually in digital form, it might be easier to transfer everything in that fashion. But a lot of it is going to disappear too, but since most billionares have the most, they will lose the most, and the lower class will gain the most.