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W. Mich. U. Cooley Review
[Vol. 36:1
V. Analysis Takings jurisprudence has developed slowly. Over the course of the many community medical emergencies that have affected the United States, this jurisprudence has developed in the light of an expansive understanding of the police powers. The police power “is the chief attribute of a sovereign power, for if in its exercise there is conflict with parts of the Constitution, the police power exercised to promote its major objects will prevail[.]”102 In Section II, the government took every action to protect the health of the citizens in the town, whether it be setting up hospitals or confining sick people to homes, and no takings were ultimately upheld. In Section IV, there was government action that forced businesses to shut down, and landlords to not evict tenants, and no takings were found. As the jurisprudence of both the police power and takings developed, the police power retained its strength and courts always find an exception to takings under the police power. Throughout Section II, takings were not found due to the health officials often overreaching in their authority; however, it is not stated that had the health officials had the authority to do those actions, that they would be considered takings. In Lucas, we saw the first real limit on the police powers.103 The court in Lucas determined that when a regulation removed all economical use of the property that it was a taking,104 however, it still carved out an exception for the proper use of the police powers. “The government must pay just compensation for such takings ‘except to the extent that background principles of nuisance and property law’ independently restrict the owner’s intended use of the property.”105 By granting this nuisance exception, it permitted the continued use of the police powers without paying just compensation for property taken. In the time of COVID-19, the court in Friends does not explicitly name the normal operation of a business during a pandemic as a nuisance, which is why they did not need to rely on a Lucas analysis. However, “[a] public nuisance is an unreasonable interference with a right 102
White, 134 A. at 411. Although regulatory takings began with Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), with the determination that a regulation that goes too far could be a taking, Lucas gives us the direct answer as to when ‘too far’ becomes a taking. 104 Lucas, 505 U.S. 1003 (1992). 105 Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005) (quoting Lucas, 505 U.S. at 1032). 103
