Salus Populi
Salus populi suprema lex esto.
We are living through a very scary moment in American and world history. But not an unprecedented one. And, not one unknown to the law. The law has known plague, pandemic, and pestilence throughout history – and it has known what people and government do in such times. And the law knows what it should do.
Dating back to the Roman statesman and rhetorical orator supreme Marcus Tullius Cicero is the statement that: “Salus populi suprema lex esto.” Cicero‘s De Legibus (book III, part III, sub. VIII.) The essential translation of the phrase is that the public health is the supreme law. This maxim was cited in turn by Emer de Vattel in his treatise the Law of Nations. Vattel is recognized foremost expert on the Law of Nations relied upon by the founders. See, Franchise Tax Board of Calif. v. Hyatt, 139 S. Ct. 1485 (2019)* Vattel’s quotation of Cicero (which, by the way should be said as Kickero, not Sissero) was used in U.S. v. Pacific R.R., 120 U.S. 227 (1887). Mostly. The U.S. Supreme Court actually said, “Salus populi is then, in truth, suprema lex.” This is, to my mind, an important point, because the original Cicero quote could be read as an aspirational statement of what the law ought to be as opposed to what it is: lex ferenda and not lex lata. In 1887, the Untied States Supreme Court confirmed that the Salus Populi doctrine is lex lata under our Constitution.
So what?
Well, the good news is that the government, in exercising its police power under the law, has the power to avoid catastrophe. In emergencies, the government absolutely has the power to impose quarantine (fun fact: quarantine means 40 days, because that’s generally a sufficiently safe amount of time to see if someone or something is sick or not). In great public peril, the government absolutely has the power to impose curfews. The government has the power to shutter businesses. The government can knock down a house to prevent the spread of fire. The government can knock down a wall of your house to save you from a medical emergency. The government can (probably) destroy a house to apprehend an armed fleeing felon. In short, our Constitutional system of government recognizes that the government has the power to act adversely to private interests in the public’s ultimate interest: health.
The bad news is that, in exercising its police power during times of great public peril (traditionally fire, war, flood, pestilence/epidemic, riots), the government can take actions that drastically harm individuals and their property – and without compensating the individual for it. In Pacific R.R. (1887), supra. the U.S. Supreme Court examined the destruction of property during war and concluded that when the destruction of property is incidental to some legitimate military aim that requires immediate action, the government is not obligated to compensation. In reaching this decision, SCOTUS specifically quoted Vattel’s explanation that there are some damages, “caused by inevitable necessity; as, for instance, the destruction caused by the artillery in retaking a town from the enemy. These are merely accidents; they are misfortunes which chance deals out to the proprietors on whom they happen to fall,” and that “action lies against the state for misfortunes of this nature,-for losses which she has occasioned, not willfully, but through necessity and by mere accident, in the exertion of her rights. The same may be said of damages caused by the enemy. All the subjects are exposed to such damages; and woe to him on whom they fall!” U.S. v. Pacific R.R., 120 U.S. 227, 235 (1887)
Accordingly, here, where the government is imposing broad regulations on activities that have the effect of shuttering businesses, ending rents, and severely devaluing commercial property, I do not think that an action for just compensation lies against the sovereign – whether as a taking, or through some other claim.
In this, I agree with Prof. Ilya Somin in his very excellent post here.
I will note that I think the law is quite clear that where the government actually commandeers property during an emergency, that such action is essentially a taking requiring just compensation. The U.S. Supreme Court relying on Vattel appears to agree: “[Vattel discusses those damages] done by the state deliberately and by way of precaution, as when a field, a house, or a garden, belonging to a private person, is taken for the purpose of erecting on the spot a town rampart, or other piece of fortification, or when his standing corn or his store-houses are destroyed to prevent their being of use to the enemy, and stating that such damages are to be made good to the individual” U.S. v. Pacific R.R., 120 U.S. 227, 234 (U.S. 1887)
The Court in Pacific R.R. hedged on whether this rule falls within the actual metes and bounds of the 5th Amendment, stating that when property has been commandeered for use in great public peril for actual use such as “to house soldiers or take care of the sick” it was the “practice of the government to make compensation for the property taken. Its obligation to do so is supposed to rest upon the general principle of justice that compensation should be made where private property is taken for public use, although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clause.” U.S. v. Pacific R.R., 120 U.S. 227, 239 (U.S. 1887) (emphasis added and, fun fact, Westlaw has that bolded “to” spelled as “ot”.) But, in Russel v. U.S. 80 U.S. 623 (1871), the court mandated the payment of compensation when a boat had been commandeered for use.
Thus, while SCOTUS has expressed some question as to whether commandeering a thing to utilize it is actually the same as “taking private property for public use” under the 5th Amendment, when pushed, the Court has awarded compensation for the outright appropriation of a thing for direct use by the government. Thus, to the extent that the government may begin seizing properties for use as emergency hospitals or shelters, the obligation to pay just compensation seems fairly clear.
Finally, I think it bears some note that in Pacific R.R., the SCOTUS quotation of Vattel includes a moral imperative: stating that even where no action lies against the state for compensation in times of emergencies, “the sovereign ought to show an equitable regard for the sufferers.” I see parallels to the U.S. Supreme Court’s statement in Armstrong v. U.S., 364 U.S. 40, 49 (1960), that individuals should not be forced to bear a burden that in all fairness and justice should be borne by the public as a whole. Interestingly, I think there is some question as to how one should measure whether the burden is being borne by the public or the private individual. If everyone is subject to the same restrictions on use, then hasn’t the public already borne the burden collectively? Or should the “public” always be understood to mean that “public through government”?
Sidenote:
On a completely unrelated, but far more practical tangent: Interesting issues will now start cropping up in leases. Many leases contain provisions for Eminent Domain, sometimes allocating just compensation and sometimes excusing performance under the contract. These are often in sections titled “Eminent Domain” or “Condemnation.” But, many leases contain provisions that the headings of any particular section do not control or limit the text of the agreement. As a result, lease provisions that are nominally for “Eminent Domain” or “Condemnation” might do more than anticipated. In my experience, “Eminent Domain” clauses tend to receive less attention that other clauses in contracts. I have seen tons of well drafted ones. And a great many that weren’t. Thus, even assuming that the current government moves do not qualify as eminent domain or condemnation, it’s possible that the contractual terms themselves may apply to broader impairments of property – even when brought under the police power. As always, an attorney licensed in your jurisdiction should be consulted on these issues.
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Steven M. Silva is licensed in California and New York, and works with people licensed in New York and Washington, D.C.. He also teaches at TMCC. This post is solely Mr. Silva’s scholarly opinion, and is not legal advice.
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*As a fun diversion, in Hyatt, the U.S. S.Ct. reversed the NV S.Ct. on a matter of application of sovereign immunity as between California and Nevada by enhancing sovereign immunities. In so doing, SCOTUS overruled Nevada v. Hall, 440 U.S. 410(1979)… in which the SCOTUS had affirmed the California Courts against Nevada on a matter of application of sovereign immunity by allowing the California courts to not recognize statutory damage caps as part of the partial waiver of sovereign immunity. I personally find it somewhat amusing that Nevada lost to California on the same question twice in completely different directions.