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Brigham Young University Prelaw Review

Keywords

Covid-19, 5th Amendment, Pandemic, Takings Claim, Takings Clause, Small Business, Police Powers, Penn Test, First English Evangelical Lutheran Church v. Los Angeles County Lucas v. South Carolina Coastal Council Penn Central Transportation Co. v. New York City

Abstract

The invocation of police powers by state governments throughout the Covid-19 pandemic to restrict business activity created a legal protection around government action that prevents 5th Amendment claims. This protection persists whether or not those actions fit within precedential criteria for takings. While police powers are certainly an important aspect of governance in times of crisis, the infringement of individuals’ constitutional rights that accompanied their utilization must be addressed. Moreover, their use during the pandemic set a potentially dangerous precedent for their use in future emergencies. Considering the growing concern surrounding the adequacy of Takings Clause precedent for preventing government overreach, this paper proposes an exception to the Penn Test --Penn Central Transportation Co. v. New York City-- that would safeguard individuals’ property rights in the face of police power invocation.

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