That was fast: the very first (as far as we can tell) case challenging the various coronavirus shutdown orders has reached the Supreme Court. See here, here, here and here, for other cases.
This is the Pennsylvania case we wrote about a couple of weeks ago. The one where where "Friends of Danny Devito" (no, not that Danny Devito) sued the Pennsylvania governor challenging shut down orders under a variety of theories. Including a takings claim, of course. The court rejected the takings claim, mostly relying on Tahoe-Sierra.
The losing plaintiffs have now asked SCOTUS to stay enforcement while they prepare and file a cert petition.
Here are the key parts, previewing the takings argument on the merits:
14. A Concurring and Dissenting Opinion written by the Chief Justice of the Supreme Court of Pennsylvania and signed by two other justices expressed concern that although the Executive Order is purported to be temporary, that may not be so for businesses unable to endure the revenue loss associated with being shut down.15. Further, these justices also expressed their concern about the arbitrariness of the waiver process and, of critical importance, their concern that the Majority Opinion declared there is no judicial review for a business that suffered a waiver denial. The Pennsylvania Chief Justice wrote:I am less confident, however, in the majority’s conclusion that “summary administrative action” by the executive branch to close many businesses throughout the Commonwealth must evade judicial review as a check against arbitrariness. Majority Opinion, slip op. at 42. While the majority repeatedly stresses that such closure is temporary, see id., this may in fact not be so for businesses that are unable to endure the associated revenue losses. Additionally, the damage to surviving businesses may be vast. Significantly, moreover, the Supreme Court of the United States has admonished that the impermanent nature of a restriction “should not be given exclusive significance one way or the other” in determining whether it is a proper exercise of police power. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 337, 122 S. Ct. 1465, 1486 (2002).Concurring and Dissenting Opinion, Page 3. (emphasis added)....19. The Governor has stated the closure is "indefinite."
App. at 5-6, 7 (footnote omitted).
So dust off your copies of Tahoe-Sierra and follow along on the Court's docket. We will be doing so.
Application to Stay Enforcement, Friends of Danny Devito v. Wolf, No. 19A1032 (U.S. Apr. 27, 2020)
