April 30, 2020 4:14PM

Are Shutdown Orders a Taking? Part Two

States and cities have closed innumerable firms and ordered their workers and suppliers into idleness in response to the dangers of COVID-19 transmission. A month ago I posted about some legal questions raised as a result:

Are these takings of property for public use? If so, would the Supreme Court rule that they require just compensation under the Fifth Amendment’s Taking Clause? If not, is there nonetheless a case for some such compensation, such as emergency rescue payments, as rough justice?

I quoted two liberty‐​minded law professors on the subject. Cato adjunct scholar Ilya Somin wrote that on current Supreme Court precedent, which generally refuses to acknowledge most government regulatory action as a taking for Fifth Amendment purposes, courts would probably not award compensation for most shutdown losses. But both Somin and Keith Whittington went on to argue that the state of the law aside, there may be a moral case for compensating those who have been asked to forgo their livelihoods in response to a public safety emergency.

Since then there have been a couple of updates. Earlier this month the Pennsylvania Supreme Court ruled against several businesses that had argued (among several other theories) that being ordered to close was a compensable taking under the U.S. and Pennsylvania constitutions. Three dissenting justices held that the claims deserved more procedural consideration but did not endorse the application of a takings theory. Prof. Somin has more, noting that this outcome is to be expected under the current state of precedent. In recent days, Somin and business law professor F. E. Guerra‐​Pujol have had an exchange of views on whether the state of current law is really as discouraging for claimants as Somin believes. (For what it’s worth, I’d side with Somin.)

By coincidence, thanks to a casual reference in a piece by the Poynter news organization, I can report that interest in what you might call the moral argument for shutdown compensation go back at least a century. In 1906 the legislature of Massachusetts enacted a law to assure some support for laborers kept from their employ by public health orders in time of epidemic:

Section 95. If a disease dangerous to the public health breaks out in a town, or if a person is infected or lately has been infected therewith, the board of health shall immediately provide such hospital or place of reception and such nurses and other assistance and necessaries as is judged best for his accommodation and for the safety of the inhabitants, and the same shall be subject to the regulations of the board. The board may cause any sick or infected person to be removed to such hospital or place, if it can be done without danger to his health; otherwise the house or place in which he remains shall be considered as a hospital, and all persons residing in or in any way connected therewith shall be subject to the regulations of the board, and, if necessary, persons in the neighborhood may be removed. When the board of health of a town shall deem it necessary, in the interest of the public health, to require a resident wage earner to remain within such house or place or otherwise to interfere with the following of his employment, he shall receive from such town during the period of his restraint compensation to the extent of three fourths of his regular wages; provided, that the amount so received shall not exceed two dollars for each working day. [emphasis added]

By the standards of that time, two dollars a day is not as ungenerous a substitute wage as it may seem from our remove; if this guide to 1904–1905 wages is accurate, it would have sufficed to replace three‐​quarters or more of wages in all but the most highly skilled of Massachusetts industrial trades.

Nothing in the policy world is ever as new as it may seem, including measures to tide over the workforce whose livelihood has been interrupted by an epidemic.