Be sure to read the entirety of Lawprof Ilya Somin's recent post on Volokh, "Federal Appellate Court Rules in Favor of Takings Lawsuit Against the CDC's Covid-Era Eviction Moratorium."
There, he analyzes the Federal Circuit's recent 2-1 opinion in Darby Dev. Co., Inc. v. United States, No. 22-1929 (Aug. 7, 2024) (we wrote up the case here: "Deepening A Lower Court Split, Fed Cir (2-1) Reinstates CDC Co-19 Eviction Moratorium Temporary Takings Claim").
Professor Somin does a better job that we did offering his thoughts on the "authorized" issue, concluding:
To me, the decisive factor should be that the Takings Clause nowhere says that compensation is only required for legal government actions or for those specifically authorized by statute. Rather, the Clause imposes a general rule that compensation must be paid whenever the government takes private property for "public use." That, of course, can happen even without proper legislative authorization. I can understand if takings liability is nonetheless denied when rogue low-level officials seize property without any plausible justification. But that isn't what happened here.
He also dives into the question of whether leasing property to a tenant is an "invitation" to occupy the property that pretty much wipes out any claim that the government restricting the ability to recover the property upon expiration or breach of the lease is a physical taking:
To put it a different way, any "invitation" expires at the point where the property owner has a legal right to evict the tenant. At that point, there is no voluntary landlord-tenant relationship anymore; and if the government forces the owner to keep on housing the tenant on his land, we have a mandated physical occupation of property, which counts as a per se taking.
Well worth reading. Check it out.
