Supreme Court to Decide if Eviction Moratorium Constitutes Fifth Amendment Taking
The United States Supreme Court stands at a pivotal crossroads in property rights jurisprudence as it considers whether to hear a case that could fundamentally reshape the relationship between government emergency powers and private property rights. At issue is whether government-imposed eviction moratorium measures during the COVID-19 pandemic constituted a “taking” under the Fifth Amendment, potentially requiring compensation to affected property owners.
This constitutional question carries enormous implications for property owners, tenants, and government authority during crises. The Court’s decision whether to grant certiorari will signal its willingness to address one of the most controversial pandemic-era policies through the lens of constitutional property protections.
Background of the Eviction Moratorium Challenge
The case stems from challenges to eviction moratorium policies implemented at federal, state, and local levels during the COVID-19 pandemic. These moratoriums prohibited landlords from evicting tenants for nonpayment of rent, with the stated purpose of preventing homelessness and reducing virus transmission by keeping people housed during a public health emergency.
While the federal moratorium issued by the Centers for Disease Control and Prevention (CDC) was struck down by the Supreme Court in August 2021 (in Alabama Association of Realtors v. Department of Health and Human Services), that ruling focused on whether the CDC exceeded its statutory authority. The Court did not address the constitutional question of whether such moratoriums constituted a “taking” requiring just compensation under the Fifth Amendment.
Now, property owners are asking the Court to answer this unresolved constitutional question through cases challenging state and local moratoriums that remained in effect even after the federal ban was invalidated.
Understanding Takings Jurisprudence
The Fifth Amendment’s Takings Clause states that private property shall not “be taken for public use, without just compensation.” Traditionally, this applied to direct appropriation of property by the government. However, Supreme Court jurisprudence has expanded this concept to include “regulatory takings” where government regulation substantially interferes with property rights without physically taking the property.
Two primary frameworks exist for analyzing regulatory takings claims:
- Lucas v. South Carolina Coastal Council (1992) established that regulations denying all economically beneficial use of property constitute per se takings requiring compensation.
- Penn Central Transportation Co. v. New York City (1978) created a balancing test examining the economic impact on the property owner, interference with investment-backed expectations, and the character of the government action.
Property owners argue that the eviction moratorium effectively transferred a fundamental property right to tenants without compensation. By forcing landlords to provide housing without ensuring payment, the government allegedly took private property for public use (housing security during a pandemic) without just compensation – a principle similar to what is eminent domain in many ways, though with distinct differences.
Legal Arguments for Property Owners
Proponents of classifying eviction moratorium policies as takings advance several compelling arguments. First, they contend that the right to exclude others represents one of the most fundamental attributes of property ownership. The Supreme Court has repeatedly recognized this principle, most recently in Cedar Point Nursery v. Hassid (2021), where the Court held that a California regulation granting union organizers access to agricultural properties constituted a per se physical taking.
Second, property owners argue that moratoriums substantially impaired their economic interests by forcing them to provide housing without guaranteed compensation. Many landlords continued facing mortgage obligations, tax burdens, maintenance costs, and utility expenses while receiving no rental income. This economic reality, they contend, constitutes the type of interference with investment-backed expectations that Penn Central recognized as potentially compensable.
Third, they distinguish eviction moratorium measures from traditional rent control measures that courts have generally upheld against takings challenges. Unlike rent control, which still permits eviction for nonpayment, moratoriums required landlords to house non-paying tenants indefinitely during the emergency period, representing a more substantial interference with property rights.
Arguments Against Classifying Moratoriums as Takings
Government defenders and tenant advocates present several counterarguments against treating eviction moratorium orders as compensable takings. First, they emphasize that moratoriums were temporary emergency measures responding to an unprecedented public health crisis, not permanent appropriations of property rights. Courts have historically given governments greater latitude during emergencies.
Second, they argue that moratoriums did not eliminate all economic value or use of the property. Landlords retained ownership and could eventually recover possession once moratoriums expired. Additionally, many moratorium programs were coupled with rental assistance programs intended to make landlords whole, even if implementation proved problematic.
Third, they contend that under the Penn Central balancing test, the character of the government action weighs heavily against finding a taking. The moratoriums served critical public health objectives during an extraordinary crisis, not merely advancing ordinary government interests.
Fourth, they note that landlords enter a heavily regulated industry with reduced investment-backed expectations regarding absolute property rights. Courts have long upheld various landlord-tenant regulations against constitutional challenges when they advance legitimate government interests.
Relevant Precedents and Legal Context
Several Supreme Court precedents will likely influence the Court’s analysis if it grants review. In addition to Cedar Point Nursery, Lucas, and Penn Central, the Court may look to Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002), which held that temporary moratoria on development do not automatically constitute takings.
The Court may also consider Yee v. City of Escondido (1992), where it rejected takings challenge to rent control regulations for mobile home parks. However, the Court specifically noted that the regulation did not compel landlords to continue renting property, distinguishing it from the eviction moratorium policies at issue now.
Historical precedents from other national emergencies could prove influential as well. During both World Wars, the Supreme Court upheld emergency rent control measures against constitutional challenges in cases like Block v. Hirsh (1921) and Bowles v. Willingham (1944). However, those cases primarily addressed due process rather than takings claims.
Broader Implications of the Court’s Decision
Should the Supreme Court grant review and rule on this issue, its decision will carry significant implications beyond the specific context of pandemic eviction moratorium orders. A ruling favoring property owners would strengthen constitutional protections for landlords and potentially limit government authority to implement similar emergency measures in future crises without providing compensation.
Conversely, a ruling upholding moratoriums against takings challenges would reaffirm broad government authority to temporarily restrict property rights during emergencies without triggering compensation requirements. This could embolden state and local governments to employ similar strategies during future public health crises or other emergencies.
The Court’s analysis might also clarify the boundaries between physical and regulatory takings jurisprudence, potentially reshaping property rights doctrine more broadly. Following Cedar Point Nursery, property rights advocates have pushed for expanded application of the per se physical takings framework to various property regulations.
For landlords and property investors, the decision could significantly impact risk assessments and expected returns in residential rental markets. A ruling requiring compensation for moratorium impacts might reduce perceived regulatory risk, while the opposite outcome could lead investors to demand higher returns to compensate for potential future regulatory interventions.
Balancing Competing Public Interests
This case fundamentally involves balancing competing public interests. On one hand, protecting property rights and ensuring just compensation for government interference with those rights represents a core constitutional principle. Property rights advocates argue that undermining these protections threatens economic stability and investment.
On the other hand, governments must retain flexibility to address public health emergencies and prevent humanitarian crises. Requiring compensation for every emergency measure affecting property rights could severely constrain government response capabilities during extraordinary circumstances.
The Court must also consider practical realities. If moratoriums constitute takings requiring compensation, who bears responsibility for payment? Federal, state, or local governments? What methodology should determine appropriate compensation? Would requiring compensation make emergency housing protections practically impossible to implement during future crises?
Potential Outcomes and Future Directions
Several potential outcomes exist if the Supreme Court grants review. The Court could establish a bright-line rule that eviction moratorium measures constitute per se physical takings requiring compensation. Alternatively, it might apply the Penn Central balancing test, potentially finding that while some moratoriums might constitute takings under specific circumstances, others might not depend on their duration, economic impact, and accompanying relief measures.
The Court might also decline to establish a categorical rule, instead providing guidance on factors lower courts should consider when evaluating takings challenges to emergency housing regulations. This approach would allow for context-specific analysis while acknowledging the unique nature of each emergency.
If the Court declines review, lower courts will continue developing potentially conflicting approaches to these questions, likely leading to circuit splits that eventually require Supreme Court resolution.
State-Specific Considerations
The impact of the Court’s decision would vary by state due to differing property laws. For example, the ruling could significantly affect how eminent domain in New Jersey operates, particularly in relation to emergency powers. New Jersey has its own robust body of property law that interacts with federal constitutional protections.
Property owners facing both the effects of eviction moratorium policies and other property challenges may need specialized legal assistance. Those with concerns about property tax assessments during periods when rental income was restricted might need to consult a property tax appeal lawyer who understands the intersection of these complex issues.
Key Takeaways:
- The Supreme Court is considering whether COVID-19 eviction moratorium policies constitute a taking requiring compensation under the Fifth Amendment.
- The case highlights the tension between emergency government powers and constitutional property protections during crises.
- The ruling could fundamentally reshape government authority to implement emergency housing measures in future public health emergencies.
Need Expert Property Rights Guidance?
Navigating the complex interplay between government regulations and property rights requires expert legal guidance. Whether you’re facing questions about what is eminent domain, challenging a property tax assessment, or dealing with the aftermath of an eviction moratorium, our experienced team can help protect your interests.
