Can the Government Seize Your Property? Understanding Executive Powers and the COVID-19 Response

Governors across the country are responding to the COVID-19 crisis by issuing emergency declarations and executive orders that authorize a broad range of responses, including the commandeering of private property. In California Governor Gavin Newsom issued an executive order allowing him to commandeer hotels to aid in the response to the virus. Newsom is authorized to commandeer any private property deemed necessary to respond to an ongoing emergency under the California Emergency Services Act. Laws in several other states, including Colorado, Indiana and Minnesota, similarly authorize the executive branch to swiftly acquire private property during a peacetime emergency.

These measures may seem extreme, but the U.S. Supreme Court has recognized the expansive authority of state governments to respond to public health scares. In Jacobson v. Commonwealth of Massachusetts, the Supreme Court recognized the authority of a state to “enact quarantine laws” and “health laws of every description.” This ruling upheld Massachusetts’ right to order compulsory vaccinations of adults for small pox. But some courts have attempted to step in and limit the ability of state and local governments to respond to the current crisis. In Texas, a Galveston County Judge stated that he did not believe that a countywide shut down of bars and restaurants was legal. An Ohio trial court judge rejected the state’s attempt to postpone its primary election due to COVID-19, but Ohio Governor Mark DeWine still canceled the elections over that court order. The Ohio Supreme Court later denied a writ of mandamus to compel a county to hold the primary on the original date, effectively ratifying the governor’s act.

On the federal level, President Trump has declared a national emergency and invoked powers under the Stafford Act and the Defense Production Act. As discussed in an earlier article, the Stafford Act authorizes FEMA to quickly acquire facilities and supplies owned by private individuals or businesses. The Brennan Center of NYU School of Law has issued a list of 136 federal statutes that can be used once we are in a state of national emergency. According to their research, emergency powers cover almost every imaginable subject area, land use, public health, trade, federal pay schedules, agriculture, transportation, communications and criminal law.¹

Many will recall the debate surrounding President Trump’s ability to declare a national emergency in an attempt to build portions of a wall along the U.S.-Mexico border. The Trump administration recently relied on 10 U.S.C § 2808 when it made this attempt. This law allows the Secretary of Defense in a national emergency to “undertake military construction projects … not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction.” A United States District Court held that the Trump administration could not rely on these emergency powers to apply funds not allocated for the wall. This was because the administration failed to establish that the projects were necessary to support the armed forces.

According to Elizabeth Goitein, a co-director of the Liberty and National Security Program at NYU School of Law, “In contrast to the situation at the border wall, which was in no way an emergency and the president’s declaration went against Congress’s will,” she said, “this is a situation where we face a true emergency, and members of Congress have actually been encouraging the president to take this action.”² According to her, President Trump’s coronavirus emergency declaration, in contrast to his Mexico border wall declaration, fit the purpose of emergency powers laws.

Governments have already started reaching out to business owners about using their buildings and supplies to respond to COVID-19. We all want to keep the people around us healthy, but we also want to maintain protections for individual rights. If the government contacts you about using or commandeering your property, an experienced eminent domain attorney can help you navigate the process and seek fair compensation.

1. Brennan Center for Justice, “A Guide to Emergency Powers and Their Use,” 2019
2. Savage, Charlie, New York Times, “Trump Declared an Emergency Over Coronavirus. Here’s What It Can Do.” 2020.