American businesses deemed non-essential are filing lawsuits to challenge the constitutionality of government-forced closures.
American businesses deemed non-essential and struggling to survive during the COVID-19 outbreak are filing lawsuits to challenge the constitutionality of government-forced closures. The U.S. Supreme Court weighed in on one such challenge on Wednesday, when it refused to lift Pennsylvania’s shutdown order.
Its list designating business as life-sustaining versus non-life-sustaining has been amended multiple times, and resembles decisions made by other states to keep intact industry supply chains such as health care, food and energy, manufacturing operations for certain minerals, chemicals, plastics and cleaning supplies, and semiconductors, and maintain public utility services.
According to Gibson Dunn & Crutcher attorney Avi Weitzman, businesses that challenge the constitutionality of such orders could raise at least four potential theories to try and make their case. Story continues“It’s called a regulatory taking — that the active regulation is so onerous that it has taken away property without sufficient reason,” Weitzman explained.
The rule, he said, was established by the U.S. Supreme Court roughly 100 years ago when it held that zoning regulations applied by cities, counties, and states remain legal, as long as the regulations do not involve government seizure or taking control of the property. A “serious denial” of constitutional rights?Due process considerations are central to the Pennsylvania case now before the U.S. Supreme Court. The petitioners — a public golf course, state legislative candidate Danny DeVito, a timber company, a laundromat, and a licensed realtor — argue that the exemption system effectively singles out businesses, without judicial review.
Roth said he considers the pandemic “very serious” yet believes the golf course can be operated safely in his rural community where no county residents have been diagnosed with COVID-19. In a separate case, a group of 15 small business owners in Minnesota are also testing an equal protection claim against the state, alleging that Gov. Tim Walz’s categorization scheme designating which companies may remain open is unconstitutional.
Other constitutional challenges have been raised alleging state emergency orders infringe on freedom of speech and freedom of assembly.
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