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W. Mich. U. Cooley Review
[Vol. 36:1
police powers are controlling. Courts should stay the rulings on takings claims related to community medical emergencies, or any taking claim for that matter, until at least one year has passed. After one year, courts need to view the restrictions with “special skepticism” and determine them as permanent takings under Lucas. The police powers do not allow a ‘temporary’ taking to go on indefinitely without any compensation paid to the property owners, and “a hypothetical point at which the parcels’ future use interests would spring back into existence[]”122 is not sufficient simply because “[a]ll takings are ‘temporary,’ in the sense that the government can always change its mind at a later time[.]”123 Private property rights have more power than being left to the whims of whether or not the government will change its mind in the future. VI. Conclusion This paper used examples from the past and present to find a balance between the government’s right to protect the health, safety, and morals of its citizens, with private property owners’ rights to not have their property taken for public use. Cases from past pandemics highlighted that individuals often acted outside of their authority to protect the citizens' health, safety, and morals. While their actions were not held to be government action, it still allowed the government to complete its objectives and mitigate medical emergencies. A development of takings jurisprudence was given, showing steps the courts have made in an effort to better balance the rights of property owners with the government over the last 100 years. Lastly, the cases stemming from the COVID-19 outbreak have shown where the courts currently are while highlighting questions that remain unanswered, yet desperately needed, to truly balance the police powers with private property rights.
122 123
Res. Invs., Inc., 85 F. Cl. at 481 (emphasis omitted). Hendler v. United States, 952 F.2d 1364, 1376 (Fed. Cir. 1991).
