Eminent Domain Report

The U.S. Supreme Court ruled last week that the Centers for Disease Control and Prevention (CDC) exceeded its authority when it imposed a national eviction moratorium. More precisely, in Alabama Association of Realtors v. Department of Health and Human Services, the Court agreed with a district court determination that the CDC acted unlawfully in banning evictions of residential tenants who declare financial need in counties with high COVID-19 rates. In its decision, the Supreme Court concluded, “If a federally imposed eviction moratorium is to continue, Congress must ...

As you may recall, it wasn’t too long after Governor Newsom issued his executive order mandating the closure of certain businesses in California that the first takings lawsuit was filed. (See our coverage of Gondola Adventures, Inc. v. Gavin Newsom, U.S.D.C. Case No. 2:20-cv-03789 here.) That lawsuit alleged that the response by the state and county agencies to the COVID-19 situation violated the state and federal constitutions, and resulted in a partial or complete taking in violation of the Fifth Amendment to the U.S. Constitution. Notably, the case was voluntarily dismissed ...

With the recent government mandates surrounding COVID-19, many businesses are completely shut down and are legally unable to open their doors to the public.  Are those businesses -- movie theaters, gyms, retail stores, etc. -- entitled to compensation for a regulatory taking?  Similarly, landlords are experiencing massive losses as those tenants are unable to make rental payments; are those losses compensable?  Should governments worry about liability when issuing orders requiring the closure of businesses? 

While compensation arguably should be paid from a decency and “good ...