11 Dec

Once the dust has settled, and Kentucky returns to a post-COVID-19 world, it will be time to address “just compensation” for those who suffered as a result of the executive orders and administrative regulations imposed on Kentuckians, orders and regulations which oftentimes picked winners and losers and those businesses and organizations which would survive the shutdowns across the Commonwealth. As that day arrives, it is appropriate to borrow from a couple of old English idioms, [soon] “the chickens will come home to roost” and [then] “it will be time to pay the piper.”

When the founding fathers wrote the Constitution, they were concerned about the arbitrary taking of their property without just compensation. This concern resulted in the “Takings Clause” which was included in the Fifth Amendment of the Constitution which reads, “No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”  Similarly, the Kentucky Constitution provides that “[those] individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them.”

Although the original meaning of the takings clause was intended to protect the actual taking of property, the original meaning has evolved over the years to include administrative takings, even those takings which are temporary like those takings which have resulted from the executive orders of the governor and other state and local government officials throughout the COVID-19 crisis.

Certainly, one would have to agree that many of the executive orders were necessary to control the spread of Covid-19. While that may be true, the rhetorical question which necessarily begs an answer is why so many of the executive orders arbitrarily and harshly targeted small businesses and organizations across the Commonwealth. Could it be that the governor and other state and local officials recognized that these small businesses and organizations were less likely to have the resources to fight the executive orders in court, executive orders which would certainly have been challenged by other businesses and organizations with substantial resources?

So why should any of this matter? The reason it matters is that the legislature will be meeting in a few weeks which will provide an opportunity to reign in the “unbridled power” of a governor or any other state or local official now and in the future, regardless of their political affiliation. It will also provide the legislature with an opportunity to set aside funds in the budget, funds which would be available to compensate those small businesses and organizations which have suffered as a result of decisions, decisions which were often arbitrary.

More importantly, the time has come for all Kentuckians to have a lively discussion and decide whether the language of the takings clauses in the Constitution of the United States and the Kentucky Constitution are more than mere words.  In 1987, in upholding the takings clause Chief Justice William Rehnquist wrote the following words, “[W]here the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” Finally, it is also time to consider and heed the words of Ronald Reagan when he wrote, “Concentrated power has always been the enemy of liberty.”

So, as I often do, I will ask all small business owners and organizations to join me on my imaginary mountaintop as we shout to Kentucky’s legislature that it is time to reign in the “unbridled power” of the governor and other state and local officials to issue orders that result in the taking of property; it is time to shout that now that “the chickens have come home to roost - it is time to pay the piper.” And maybe, just maybe, if those small business owners and organizations shout loud enough others will join in the fight not only in Kentucky, but across America.

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