Simone Lawson
During the COVID-19 pandemic, many businesses were forced to close to prevent the spread of the virus. While the government can close a business in a state of emergency, some business owners have argued that the closures violate their constitutional rights. They claim that the government's actions deprived them of their right to work and the economically beneficial use of their property, which constitutes a taking under the Fifth Amendment. However, legal scholars disagree, stating that there is no explicit amendment in the Constitution protecting the right to work. The Supreme Court has also refused to lift shutdown orders, indicating that temporary closures may not constitute a taking. Nonetheless, businesses that are unable to weather the storm and permanently close may have stronger arguments for compensation.
| Characteristics | Values |
|---|---|
| Businesses' opinion | Business owners believe that they have a "constitutional right" to operate their businesses and that the government cannot force them to close. |
| Legal opinion | Legal scholars and courts have pushed back against the business owners' claims, emphasizing that there is no explicit amendment in the Constitution that protects the right to work. |
| Government's opinion | The government believes it can close businesses in a state of emergency. |
| Constitutional recourse | Business owners may be entitled to compensation under the 5th Amendment Takings Clause, which states that "no person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." |
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What You'll Learn
- Non-essential businesses argue that closures violate the 5th Amendment's 'Takings' clause
- The government can close a business in a state of emergency
- Businesses cannot sue the government for closures or quarantining
- Businesses may be entitled to compensation for the loss of their property
- Businesses have no constitutional right to illegally reopen
Non-essential businesses argue that closures violate the 5th Amendment's 'Takings' clause
During the COVID-19 pandemic, many non-essential businesses were forced to close to limit the spread of the virus. Some of these businesses have argued that the closures violate the 5th Amendment's Takings Clause, which prohibits the government from taking property without adequate compensation. The 5th Amendment of the United States Constitution states that "no person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The Supreme Court has recognized two categories of takings: physical takings, which involve direct intrusions that appropriate an owner's property, and regulatory takings, which are government regulations that prevent an owner from using their property in a particular way or deprive it of value. Non-essential business closures would fall under the regulatory category. For a regulatory taking to occur, government action must burden an owner's private property rights to the extent that it is equivalent to a direct taking or ousting of the owner from their domain.
In the context of the pandemic, non-essential business owners may argue that stay-at-home orders deprived them of the economically beneficial use of their property, constituting a "taking" for which they should receive compensation. However, many of these orders are temporary and allow businesses to recover their losses when they reopen. As a result, courts may consider the total economic harm suffered by closed businesses when deciding on this issue. Businesses that are forced to close permanently may have stronger arguments for compensation.
While some businesses have challenged the constitutionality of forced closures, legal scholars have pushed back, noting that there is no explicit amendment in the Constitution protecting the right to work. Instead, the Constitution preserves the government's ability to protect public health, which takes precedence during a pandemic. Nonetheless, businesses in states like Pennsylvania have sued their governors and health departments, invoking the Fifth Amendment and claiming that their property was seized without due process. These lawsuits argue that the closures constitute regulatory takings that deprived them of the economic use of their properties, violating their constitutional rights.
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The government can close a business in a state of emergency
During the COVID-19 pandemic, many governments ordered the closure of non-essential businesses to prevent the spread of the virus. In response, some business owners claimed that these mandatory closures infringed on their constitutional rights and filed lawsuits to challenge the constitutionality of the government-forced closures. They argued that the government's actions deprived them of the economically beneficial use of their property, constituting a "'taking' for which they should be compensated.
However, legal scholars and courts have pushed back against these claims, noting that there is no explicit amendment in the Constitution that protects the right to work. While the Fifth Amendment of the United States Constitution prohibits the government from taking private property without just compensation, the Supreme Court has implied that temporary closures with the possibility of recovery may not constitute a taking.
In certain states, such as Nevada and Pennsylvania, the governor has been granted broad powers to impose closures during a declared state of emergency. The Supreme Court has recognized two categories of takings: physical takings and regulatory takings. Non-essential business orders would fall into the regulatory category, which requires a significant burden on an owner's private property rights to constitute a taking.
While some business owners may see it as their constitutional right to remain open, the Constitution preserves the government's ability to protect public health, especially in life-or-death situations. The government can close a business in a state of emergency, but business owners may be entitled to compensation under the Fifth Amendment's Takings Clause if they can demonstrate a significant burden on their private property rights.
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Businesses cannot sue the government for closures or quarantining
While businesses have sued the government for closures and quarantining during the COVID-19 pandemic, legal scholars have pushed back against the business owners' claims. They argue that there is no explicit amendment in the Constitution that protects the right to work.
The Fifth Amendment of the United States Constitution declares that "no person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." This provision is often referred to as the "Takings Clause." It is designed to prevent the government from forcing some individuals to bear public burdens that should be shared by the public as a whole. In the context of business closures, this could mean that the government must compensate businesses for the loss of revenue caused by stay-at-home orders.
However, the Supreme Court has implied that temporary stay-at-home orders may not constitute a "taking" under the Fifth Amendment. The Court has recognized two general categories of takings: physical takings (direct intrusions that appropriate an owner's property) and regulatory takings (government regulations that preclude an owner's ability to use their property in a particular way). Non-essential business orders would fall into the regulatory category, and to constitute a regulatory taking, government action must burden an owner's private property rights to the extent that it is functionally equivalent to a direct taking.
While businesses may argue that stay-at-home orders deprived them of the economically beneficial use of their property, the temporary nature of these orders and the ability for businesses to theoretically recover lost value upon reopening may weaken their claims. Additionally, the Supreme Court has never squarely decided whether the government can completely ban people from gathering during a state of emergency, which further complicates the legal landscape surrounding business closures during the pandemic.
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Businesses may be entitled to compensation for the loss of their property
During the COVID-19 pandemic, many businesses suffered and struggled to survive. The US government deemed some businesses as \"non-essential\", forcing them to close their doors. In response, some business owners filed lawsuits, challenging the constitutionality of these closures and claiming that the government had violated their right to work.
Legal scholars pushed back against these claims, arguing that there is no explicit amendment in the Constitution that protects the right to work. However, some businesses have argued that the numerous stay-at-home orders deprived them of the economically beneficial use of their property, constituting a "taking" for which they should be compensated. This argument is based on the 5th Amendment's "Takings Clause", which states that no person shall "...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The US Supreme Court has recognized two types of takings: physical takings, which involve direct intrusions on an owner's property, and regulatory takings, where government regulations prevent an owner from using their property in a particular way. Non-essential business orders would fall into the regulatory category. For a regulatory taking to occur, government action must burden an owner's private property rights to the extent that it is like a direct taking or "ousting" of the owner.
While the Supreme Court has implied that temporary closures may not constitute a taking, businesses that were forced to close permanently may have stronger arguments for compensation. Additionally, businesses with rental agreements that require them to pay for damages to the building may be entitled to claim a loss deduction for any necessary repairs.
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Businesses have no constitutional right to illegally reopen
During the COVID-19 pandemic, many businesses were forced to close to prevent the spread of the virus. While some businesses complied with the government-mandated closures, others chose to illegally reopen, citing their constitutional right to do so. These businesses argued that the stay-at-home orders deprived them of the economically beneficial use of their property, constituting a "taking" for which they should be compensated.
However, legal scholars and experts pushed back against these claims, stating that there is no explicit amendment in the Constitution that protects the right to work. While businesses may have a legal right to operate, they must also follow guidelines and regulations to ensure the safety of their employees and customers. Flouting precautions during a pandemic could open businesses up to civil litigation.
The United States Constitution does recognize the right to just compensation under the Fifth Amendment's "Takings Clause" when private property is taken for public use. Still, it is unclear if the temporary closures during the pandemic would meet the standard for a regulatory taking. The Supreme Court has implied that reopened businesses may not be able to claim compensation for lost revenues during the closure period.
While some businesses have filed lawsuits challenging the constitutionality of forced closures, the Supreme Court has refused to lift shutdown orders in states like Pennsylvania. Legal experts suggest that businesses that follow the governor's orders and federal guidelines are less likely to face repercussions. In the case of Club 519 in North Carolina, the bar owner argued that the governor's distinction between private bars and other alcohol-serving businesses was unconstitutional and violated the separation of powers.
Overall, while businesses may disagree with government-mandated closures, illegally reopening is not their constitutional right. The primary justification for these reopenings may be financial or a concern for employees, but the potential repercussions, including civil litigation and loss of business licenses, should be carefully considered.
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Frequently asked questions
No, the government can close businesses, especially in a state of emergency. However, the Fifth Amendment of the United States Constitution declares that “no person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”. This means that business owners forced to close their doors may be entitled to compensation under the 5th Amendment Takings Clause.
The Takings Clause falls under two categories: physical takings and regulatory takings. Physical takings refer to direct intrusions that appropriate an owner's property, while regulatory takings refer to government regulations that preclude an owner's ability to use their property in a particular way or deprive it of value. Non-essential business orders would fall into the regulatory category.
No, businesses cannot sue the government for closing their businesses. Section 319F-3 of the Public Health Service Act provides immunity to certain individuals and entities against any claims of loss that result from the activities related to the countermeasures taken by the federal government to deal with a public health emergency.
