While most Americans are staying home to stem the spread of the coronavirus, some companies and politicians have been busy mounting legal challenges to the variety of shelter-in-place orders imposed throughout the country. Attorney General William P. Barr threatened to support the plaintiffs and told federal prosecutors on Monday to be on the lookout for unconstitutional restrictions.

The lawsuits claim, in part, that state and local governments have deprived the plaintiffs of economic and property rights protected by the Constitution. More suits may follow, and if they are successful, state and local governments could be forced to pay millions, or even billions, of dollars in damages. Fortunately, the governments have a compelling defense.

Under the so-called Takings Clause of the Fifth Amendment, the government cannot take private property for public use without just compensation. The Supreme Court has interpreted this clause to bar not only physical appropriation of property but also what it has termed regulatory takings, where government action deprives owners of their propertys full economic value.

The litigants from a candidate for local office in Pennsylvania to tree specialists in Michigan to a gondola service in California claim that the stay-at-home orders do just that, and so the governments must pay up.

Supreme Court precedent, however, comes down on the side of the governments. In 2002, a majority of the court decided in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (which John Roberts had argued on behalf of Lake Tahoe) that temporary restrictions, like the 32-month moratorium on development on Lake Tahoe involved in the case, did not in and of themselves constitute regulatory takings.

While temporary restrictions might rise to the level of regulatory takings, courts would have to examine a number of factors particular to each case to figure it out. When the Pennsylvania Supreme Court rejected a challenge to the state closure order recently, the only such case decided so far, it relied on this distinction between temporary and permanent governmental action.

In the past, emergencies have often called for states to impose short-term economic restrictions, and the Supreme Court has affirmed their constitutionality, emphasizing that temporary steps that might otherwise infringe on economic rights may be permissible.

During the Great Depression, the court considered whether a Minnesota law extending the time for borrowers to pay back mortgages violated the Contracts Clause. The court held that it did not, given the economic emergency. A decision issued immediately after World War II applied the same principle, affirming the power of the New York Legislature to continue a similar mortgage moratorium.

These cases, put together, should reassure state and local officials that they can protect the public health today and engage in the difficult process of social and economic reconstruction that well need after the pandemic. Whether that requires giving tenants more time to come up with rent payments before they are evicted or other steps temporarily postponing property owners remedies, these kinds of measures should be considered constitutional.

Bernadette Meyler is a professor at Stanford Law School.

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Shelter-in-Place Orders Are Perfectly Legal - The New York Times