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COVID-19 Response: Constitutional

Protections for Private Property



March 27, 2020
As communities respond to the Coronavirus Disease 2019 (COVID-19) pandemic, the interests of
governments and property owners may clash. Governments have an interest in controlling spread of the
disease, providing testing and treatment, and helping individuals and businesses cope with widespread
disruptions of daily life. State and local governments pursue these interests through their police powers,
which give them broad latitude to take measures addressing public health, safety, and the general welfare
of those within their jurisdictions. The federal government lacks a general federal authority akin to the
police power. But acting under its enumerated authorities, including under the Commerce Clause and the
General Welfare Clause (as supplemented by the Necessary and Proper Clause), Congress has ample
power to enact legislation to deter the spread of COVID- 19, and indeed several laws enacted long before
COVID- 19's outbreak afford the President and executive agencies significant discretion to take measures
to curtail the outbreak.
Exercising these broad powers, the federal government has curtailed international travel. Many state and
local governments have prohibited dining in at restaurants and bars, halted residential evictions for
delinquent rent, and ordered casinos, gyms, and theaters closed. Several states and municipalities have
gone further, adopting stay.-at-home measures to limit residents' travel and the operation of non-
essential businesses. More such measures may be on the horizon. On March 19, 2020, President Donald
J. Trump raised the possibility of invoking the Defense Production Act (DPA), which includes authority to
require acceptance and performance under contracts or orders that the President finds necessary or
appropriate to promote the national defense. A business that is able to fulfill a DPA contract generally
must accept the contract and may need to give it preference over any non-DPA work. Thus, for example, a
distillery required to produce hand sanitizer for a DPA contract may need to scale back its liquor
production.
Many of these measures may impair a person's use of their property, directly or indirectly. For example,
the airline with airplanes sitting idle on account of travel restrictions cannot use a capital investment,
while a company required by the government to manufacture face masks could not prioritize other work.
For the most part, property owners have to accept limitations on their private property rights. The
Supreme Court has recognized that Congress routinely creates burdens for some that directly benefit
others, and that a State in the exercise of its police power may adopt reasonable restrictions on private
property. In limited circumstances, though, the Constitution requires federal or state governments to
                                                                Congressional Research Service
                                                                  https://crsreports.congress.gov
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