An otherwise responsible government may by tempted to overreach in the name of public safety. This phenomenon occurs at all levels of government and takes many forms, while the response to the ongoing pandemic provides several examples of government overreach making a bad situation even worse. While states enjoy broad authority to protect the health and safety of their citizens during emergencies, critics argue that many overreaching and arbitrary policies have had little to do with public safety and more to do with politics, pandering, self-dealing, and incompetence.
State and local governments pursue their interests via police powers, which provide broad latitude in areas of public health, safety, and general welfare for those within their jurisdictions (Stiff, 2020). However, these broad powers have resulted in illogical policies with inconsistent enforcement and often absurd results. For example, under San Francisco’s health emergency rules, sex-oriented businesses that offered food were allowed to reopen, but strippers were required to keep their masks on (Reuters, 2021). Under recent state orders, residents of Michigan were banned from buying home improvement goods and home gardening supplies while still being allowed to purchase state lottery tickets. In Florida, professional wrestling was categorized as an “essential activity,” thereby allowing that industry to operate despite a general shelter-in-place order. Meanwhile, Kentucky’s governor prohibited drive-through church services while allowing drive-through liquor sales (Snowball, 2020).
While the federal government lacks a general authority akin to the police power of the states, it often achieves similar results through actions under its enumerated Article I (Section 8) authorities, including the Commerce Clause (Clause 3) and the General Welfare Clause (Clause 1) as supplemented by the Necessary and Proper Clause (Clause 18). Congress then has ample power to enact legislation to deter the spread of COVID-19, for example, and has enacted several laws that granted the President and executive agencies under his control significant discretion regarding pandemic measures (Stiff, 2020).
An issue often associated with government overreach is whether federal action—no matter how well intentioned or implemented—results in a “taking” that would require compensation and thereby drive up the overall cost of a bill. The Takings Clause of the Fifth Amendment, states that “[P]rivate property [shall not] be taken for public use, without just compensation.” The question often asked during health crises is whether the government has the authority to take property without providing reimbursement. In the 1960 landmark case of Armstrong v. United States, the Supreme Court wrote the Takings Clause was “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole” (Black 1960). The compensation principle has been extended to state governments under the Fourteenth Amendment. Traditional examples of takings requiring compensation at a fair market price include interstate highway and railway construction. President Trump’s efforts to construct a border wall on private lands in Texas revived the debate (Harrall, 2019).
While shutting down a business indefinitely or demolishing a business due to a health emergency, thereby causing the owner to go bankrupt, is legally different than an eminent domain case, it still feels the same for someone having his American dream stripped away. It seems inherently unfair that the government can cause property to become unproductive and almost valueless through restrictions and quarantines without offering compensation in many cases. A critical distinction for understanding if or how much compensation is due turns on the government’s “necessity” to address an emergency. Even though one’s business has been demolished by the government, a broad range of arguments has been offered to support the assertion that owners of property destroyed by the government in emergencies are owed no compensation at all (Lee, 2015). Perceived unfairness, government overreach, and the taking away of livelihoods without consequence will result in a permanent uneven playing field with fewer more politically connected participants which, over time, results in fewer choices and higher prices. If consent of the people is required for an effective government, there should be a robust national debate followed by normal legislative action.
Black, Hugo Lafayette, and Supreme Court of The United States. U.S. Reports: Armstrong v. United States, 364 U.S. 40 (1960). https://www.loc.gov/item/usrep364040/.
Epstein, Richard A. The Fifth Amendment Takings Clause. National Constitution Center (2021). https://constitutioncenter.org/interactive-constitution/interpretation/amendment-v/clauses/634.
Harrall, Simon. The Federal Government’s Power of Eminent Domain Over State Lands Regarding the U.S.-Mexico Border Wall, 56 Houston Law Review (2019).
Lee, Brian A., Emergency Takings, 114 Michigan Law Review 391 (2015). https://repository.law.umich.edu/mlr/vol114/iss3/2.
Reuters. Strippers Are Back on the Job but COVID Rules Are Hurting their Pay (2021). https://www.reuters.com/world/us/strippers-are-back-job-covid-rules-are-hurting-their-pay-2021-05-18/.
Snowball, Timothy. Avoiding Government Overreach in the COVID-19 Recovery. Pacific Legal Foundation (2020). https://pacificlegal.org/avoiding-government-overreach-in-the-covid-19-recovery/
Stiff, Sean M. COVID-19 Response: Constitutional Protections for Private Property. Congressional Research Service (2020). https://crsreports.congress.gov/product/pdf/LSB/LSB1043.
United States Constitution. Library of Congress (1789). https://www.loc.gov/item/20013929/.