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W. Mich. U. Cooley Review
[Vol. 36:1
Local governments in the United States have taken a wide variety of approaches when community health emergencies have occurred, relying on the police power granted to states, which is the power to regulate and protect the health, safety, and morals of a states’ citizens. Police power has been recognized since the beginning of this country and still has great power today in the form of zoning ordinances, building codes, and nuisance regulations. By exercising these powers though, the government has encountered resistance from property owners. During community health emergencies, property owners have been forced to give up their houses to be used as hospitals, forced to shut down their businesses, and have even had their property destroyed to avoid the spread of disease. This paper examines examples from our past and present and seeks to find a balance between the right of the government to protect the health, safety, and morals of its citizens, with the right of private property owners not to have their property taken for public use without just compensation.3 Section II covers “takings” cases spanning between 1840 and 1900. During that time, the United States suffered a variety of community health emergencies, from smallpox to typhoid, even the bubonic plague; and the government reacted in a variety of manners to each potential catastrophe. Section III covers the development of takings jurisprudence between 1900 and modern times. Takings cases have been analyzed in dramatically different ways over the years, and the addition of the regulatory takings doctrine in the 1920s expanded the potential claims under the Fifth Amendment. Section IV covers the Coronavirus pandemic, which is occurring at the time of this writing. With the development of takings jurisprudence over the last 100 years, this paper looks at the few cases that have been heard on COVID-19 and how they balance the police powers and the right of private property owners. Section V is an analysis of the way the COVID-19 cases have applied the takings jurisprudence to the modern pandemic and what should be done by the courts to better address and balance the needs of the community with the rights of landowners. II. Historical “Throughout the course of the nineteenth and twentieth centuries, the United States faced multiple epidemics of deadly diseases. In the face 3
U.S. Const. amend. V.
