More on whether shutdown orders are a taking; WSJ federalism reprint ungated

A month ago I posted about the interesting legal and policy question of whether business closures aimed at preventing spread of the COVID-19 virus should be seen as a taking for which fair compensation is due. I’ve got another round on that subject up now at Cato at Liberty.

In addition, the piece I wrote a month ago for the Wall Street Journal on federalism and the pandemic response is now out from behind that newspaper’s paywall in a Cato reprint.


  • Interesting topic, but I’d like to hear your thoughts on a related issue. Is the governments moratorium on eviction a taking from the landlord? There have been some proposals to wipe out rent for tenants during the outbreak. Would this be a taking?

  • It cannot be a taking. If it were, it would bankrupt the state.

    These orders are completely illegal.

    • Your comment comes just in time for today’s posted link, to an article in which I explain why, in fact, most of today’s pandemic-related emergency orders are indeed constitutional.

      • “mostly”—that’s interesting–so there are wholesale violations . . . .

        Here are some questions:

        (1) Where are the governors’ powers to lock down people who have recovered?

        (2) Jacobson v.. Massachusetts–that involved a mandatory vaccination.

        (3) So-called “elective” procedures—when abortion is permitted? Irrational, and therefore illegitimate.

        What if Governors’ family members (e.g., Pritzker’s) violate the order with impunity?

        And what if the state statutes don’t permit this? Kentucky’s order is on shaky ground.