Thursday, March 17, 2022
Brett Raffish (Harvard Law School), Arbitrary Property Interference During a Global Pandemic and Beyond, 19 Harv. J. L. Pub. Pol’y 1 (2022):
To stymie COVID-19’s spread, state and local governments imposed sweeping and burdensome lockdown measures that crushed American businesses and interfered with private property. Despite interfering with many Americans’ property rights, state and local governments have consistently prevailed on pandemic-related regulatory takings claims in federal court. By forcing governments to pay for deprivations, the Takings Clause can thwart arbitrary interference with private property. However, the dispensation of regulatory takings claims arising out of pandemic-related regulations suggests that the Takings Clause may presently fail to adequately thwart arbitrary property interference in the partial regulatory takings context when the government claims that it is acting in the name of public health or safety.
This Note expands on existing literature and details how substantive due process may presently only protect property from extremely arbitrary or despotic interference. This Note then argues that when substantive due process fails to thwart arbitrary interference, the regulatory takings doctrine will also fail to shield property when interference is substantial but is made pursuant to states’ police powers. Because both doctrines may simultaneously fail to stymie arbitrariness, this Note contends that our Republic may constitutionally tolerate arbitrary property interference, a phenomenon highly detrimental to the rule of law. To incentivize legitimate and principled decision-making, and to protect private property from arbitrary interference, this Note urges states to pass laws that resemble the Texas Private Real Property Rights Preservation Act. These laws should, at a minimum: (1) require governments to compensate property owners for regulatory diminutions in property value that exceed a legislatively calibrated threshold; (2) excuse compensation when governments can satisfy a form of heightened scrutiny; and (3) permit governments to seek immunity from a law’s requirements in exigent circumstances.