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  • Oren Levin-Waldman

Congress’s Constitutional Obligation to Compensate Workers for Job Loss

It is the eve of the 2020 election and still no agreement has been reached on a second coronavirus relief bill. The Democrats still hold out for the maximum while Republicans have gradually been coming up in what they are willing to pay. And yet, the Speaker of the House, Nancy Pelosi, refuses to budge. With those who have lost their jobs and livelihoods serving as pawns in this typical Washington power struggle, she believes that she can force Republicans, especially the Trump administration, to do as she demands.


It is no wonder that Congress has among the lowest approval ratings. When millions of ordinary workers are suffering and Congress appears to be playing power games, the only logical conclusion to draw is that our Congress, irrespective of political party, couldn’t care less about the ordinary American. But then, why would we expect it to? After all, the Democrats in Congress really don’t want a relief bill because that will be viewed as giving the Republicans a pre-election victory. 


When ordinary workers aren’t members of the elites — those who have the luxury of working remotely with little if any interruptions to their income — it is easy to let the ordinary worker suffer. After all, elites haven’t cared for ordinary workers for years now. It was the elites who were responsible for exporting good paying factory jobs out of the country. It was the elites who embraced the global economy and open borders. And in the end, it was the elites that pursued a policy course that rewarded Wall Street at the expense of Main street, with the result being increased wealth and income inequality and the disappearance of the middle class. The elites, in short, achieved for us short-term growth, but nothing that could be considered a sustainable economy.


The elites, of course, will blame the suffering of the ordinary worker on the recession resulting from COVID-19. But that is only true to a point. Were it the case that we have a pandemic which sufficiently frightened consumers to stay out of restaurants, concert halls, stadiums, and other businesses where they would need to come into contact with others, then we could rightfully blame COVID for the pandemic. But that isn’t quite the case here.


In many states, and indeed in much of the world, the weapon of choice against the pandemic has been the lockdown. Lockdowns rest on the assumption that if the virus is contained, we will see a decline in positivity rates. While this may be true for the duration of the lockdown, the virus only begins to spread again when the lockdown is lifted. That is, the virus does not simply disappear because we are in lockdown.


When the economy is thrown into a recession because the government ordered a lockdown for whatever reason, it has now become the proximate cause of suffering. That people have lost their jobs, livelihoods, and in some cases businesses, it is not a mere casualty of a pandemic. It no longer suffices for public officials to blame health professionals. On the contrary, they have a responsibility to compensate the ordinary worker suffering losses right now because the consequences are akin to a Fifth Amendment ‘taking’ without just compensation.


The Fifth Amendment under the laws of eminent domain requires the government to compensate property owners for their loss at fair market value should it be necessary to seize that property for a public purpose. This is part of a larger amendment which contains the due process clause. Together, the Constitution is creating a bulwark against the arbitrary exercise of power. What the laws of eminent domain do is put into place a set of procedures whereby the one whose property is to be seized can challenge that decision in public hearings and ultimately in a court of law. 


The sovereign, in short, is forced to justify the action, which is also the meaning of due process. If every time a sovereign must compensate a property owner, it will think twice about doing so because it could be costly. That is, it will only do so if absolutely necessary for fulfilling the public good. And yet, what is important here is that public justification does not absolve the sovereign of its responsibility to compensate for the loss of property.


There are perhaps two ways to understand the meaning of a Taking. One is to say that it only applies if property has been physically seized. This, we could refer to as “ordinary observing” as Yale law professor Bruce Ackerman has called it. The other is to ask whether a government action resulted in the loss of value, which Ackerman refers to as “scientific policymaking.” Here we do have some guidance from the Supreme Court. In a series of cases when JFK airport was constructed homeowners complained that planes flying in the glide-path to the runways effectively diminished the value of their homes. The Court did liken that to a taking.


Lockdowns ordered by government dictate have resulted in the closure of many businesses, many of which will not be able to reopen. Although justified in the name of public health, the effect for many of these business owners has been the loss of their property without just compensation. Or so this would be the case to the ordinary observers. But the concert violinist whose only real property is her violin and her talent has also had her livelihood taken from her because with the closure of concert halls, she cannot make a living. To the scientific policymaker, the state has deprived her of her livelihood.


Even businesses like restaurants that can reopen, can only do so at 25 percent capacity because of social distancing requirements. They too have suffered a loss of value for which they aren’t being compensated. Democrats who are playing games with people’s lives only demonstrate they couldn't care less for the plight of ordinary workers, even though they profess to be the party of the working person. But Republicans who profess fidelity to the constitution here are no better. 


When the expanded UI benefits expired at the end of January, they were arguing that those benefits gave workers more money not to work. In some cases that may have been true, but it is besides the point from a constitutional standpoint. These people would not be out of work were it not for the actions taken by the government. It is conceivable that had no lockdowns occurred, there would have been a slowdown because of consumer fear, but we most likely would not be in as deep of a recession.


Although some public officials acknowledge that ordinary voters are suffering from Congress’s failure to arrive at a new relief bill, nobody has couched in these terms. Because these lockdowns were ordered by the government, the government has a clear responsibility to compensate. That it shirks its responsibility under the Constitution not only means that it really couldn’t care less about the public, but it also doesn’t really respect the Constitution. To withhold this bill because it may benefit the other side in an election is not only cynical, but it is obscene.  Moreover, it also renders all that talk about the importance of democracy hollow. Do we really believe that they care about democracy?


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