First, you are welcome for putting that song in your head.
Second, in these surreal times, governments are forcing businesses to shut down. This is hitting small businesses particularly hard, including restaurants and bars. This has me thinking, does eminent domain apply? The answer is--wait for it--maybe, and in some circumstances, I think yes. You may be surprised to know that eminent domain does not require the government to come in and physically take your property. At least under federal law, a taking can occur when government action unduly burdens private property interests. Let's take a look at the U.S. Constitution and, in particular, the Fifth Amendment:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
That last sentence is the Takings Clause and it has been interpreted to apply to situations where government regulations interfere with property rights to such an extent that the interference rises to a taking. As stated by the Supreme Court: "Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action." Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S. Ct. 2448, 2457, 150 L. Ed. 2d 592 (2001) That's a complicated, case-specific analysis, of course, and a complete answer as to what constitutes a "compensable taking" by virtue of government regulation goes beyond the scope of this article. I am simply raising the idea for your consideration as you contemplate what to do.
Making matters even more complicated, when it comes to the coronavirus, we are talking about, for the most part, state action so we'd have to look to your state constitution. In Illinois, the state Supreme Court has ruled that "United States Supreme Court decisions regarding what constitutes a taking are relevant for purposes of determining whether a plaintiff has sufficiently alleged a taking under the Illinois Constitution." See Hampton v. Metro. Water Reclamation Dist. of Greater Chicago, 57 N.E.3d 1229, 1236 (2016). So, if you are in Illinois, the door might be open, even if just slightly. Admittedly, I haven't seen a case directly on point. You might be making some new law, but unusual times call for unusual measures.
Anyone want to make some new law? "You can't touch this (oh-oh oh oh oh-oh-oh)."
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