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Judge doubts eviction ban, but may lack power to stop it
The Associated Press ^ | August 9, 2021 | By MARK SHERMAN

Posted on 08/09/2021 12:29:30 PM PDT by Oldeconomybuyer

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To: DownInFlames

The Supine Court of The United States- You haven’t heard?


21 posted on 08/09/2021 1:01:32 PM PDT by matthew fuller (Biden's illegal presidency is a demokkkrat declaration of war on Americans and civilization.)
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To: Oldeconomybuyer

A judge is unsure about possessing power? Without looking, I’m going to guess that this helps the Left.

Yep.


22 posted on 08/09/2021 1:01:43 PM PDT by cdcdawg (It's all so tiresome.)
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To: Lockbox
The eviction ban is a takings, plain and simple.

https://www.law.cornell.edu/wex/takings

Takings

Primary tabs

Definition

A taking is when the government seizes private property for public use. 

Overview

A taking can come in two forms. The taking may be physical, which means that the government literally takes the property from its owner). Or the taking may be constructive (also called a regulatory taking), which means that the government restricts the owner's rights so much that the governmental action becomes the functional equivalent of a physical seizure. 

Just Compensation

The Fifth Amendment of the United States Constitution mandates that if the government takes private property for public use, the government must provide "just compensation." Typically, a "just compensation" is determined by an appraisal of the property's fair market value. However, depending on the size and unique nature of the land, it may be difficult to determine the fair market value. 

Types of Takings

Many types of government action infringe on private property rights. Accordingly, the Fifth Amendment's compensation requirement is not limited to government seizures of real property. Instead, it extends to all kinds of tangible and intangible property, including but not limited to easements, personal propertycontract rights, and trade secrets.

In United States v. Dickinson, 331 U.S. 745 (1947), the Supreme Court held that even if the government does not physically seize private property, the action is still a taking "when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.” 

Land Use Regulation

Many regulatory takings disputes arise in the context of land use regulation. Agins v. City of Tiburon, 447 U.S. 255 (1980), the Supreme Court held that it there is not a requirement for government compensation where such regulations "substantially advance legitimate governmental interests," and as long as the regulations do not prevent a property owner from making “economically viable use of his land.” 

Public Purpose

Courts broadly interpret the Fifth Amendment to allow the government to seize property if doing so will increase the general public welfare. In Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court allowed a taking when the government used eminent domain to seize private property to facilitate a private development. The Court considered the taking to be a public use because the community would enjoy the furthering of economic development. Further, the Kelo court determined that a governmental claim of eminent domain is justified if the seizure is rationally related to a conceivable public purpose. 

The Kelo decision significantly broadened the government's takings power. This caused significant controversy, and states were quick to act to quell concerns about this expansion of power. In response to Kelo, many states have passed laws which have restricted governments' takings abilities (such as implementing a stricter definition of  what constitutes a "public use," requiring heightened levels of scrutiny to justify an action categorized as a taking, etc). 

How Much Compensation is Just?

Generally, the government must pay the market value of seized property. There are, however, many exceptions. The government need not compensate a property owner for the portion of the property's value created by that government.

For example, in United States v. Fuller, 409 U.S. 488 (1973), the Supreme Court held that when the federal government condemned a rancher's grazing land, it did not owe compensation for the portion of the land's value derived from its proximity to adjacent, federally owned grazing land.

When is a Regulation a Taking?

Sometimes, a government regulation infringes upon private property ownership to such an extent that the regulation can be considered a taking, thus requiring just compensation. The Supreme Court, over a series of regulatory takings cases, has developed a 4-part test to determine whether a regulation is considered to be a taking. 

  1. Is the regulation a taking under Loretto? 
    1. A government regulation is a taking when the government authorizes a permanent physical occupation of real/personal property
  2. Is the regulation a taking under Lucas?
    1. The regulation is a taking when the regulation causes the loss of all economically beneficial/productive uses of the land, unless the regulation is justified by background principles of property law/nuisance law
  3. Is the regulation a taking under Nollan-Dolan?
    1. The regulation is a taking if the government demands an exaction that lacks a nexus with a legitimate state interest or lacks proportionality to project’s impacts
      1. Exaction – a requirement that the developer provides specified land, improvements, payments, or other benefits to the public to help offset the project’s impacts
  4. Is the regulation a taking under the Penn Central balancing test?
    1. Here a court will look at 3 factors:
      1. The character of the governmental action involved in the regulation
        1. If the government's action is a physical action, rather than a “regulatory invasion,” then the action is almost certainly a taking
      2. The extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations for the parcel as a whole
      3. The regulation’s economic impact on the affected prop owner

Noxious Use 

Even if a government regulation is deemed a taking, it still may be viewed as justified, as long as it meets the noxious use test, also known as the Mugler-Hadacheck test. Under this test, a regulation adopted under the police power to protect the public health, safety, or welfare is not a taking, even if the taking reduces the value of property.

Remedies for Takings

Under First Evangelical (1987), the appropriate remedy for a taking will typically consist of compensatory damages. 


23 posted on 08/09/2021 1:05:26 PM PDT by E. Pluribus Unum ("Communism is not love. Communism is a hammer which we use to crush the enemy." ― Mao Zedong)
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To: Oldeconomybuyer
"Friedrich questioned whether she should give so much weight to Kavanaugh’s one-paragraph opinion, especially since the four dissenting justices offered no explanation for their votes."

The plaintiff's lawyer (Brett Shumate) seems to have pointed out the obvious: Kavanaugh would have switched his vote had he known that July 31 would be extended... and unlike the others, he spelled out his reasoning. So that's the answer to Friedrich's question.

24 posted on 08/09/2021 1:05:49 PM PDT by alancarp (George Orwell was an optimist.)
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To: Chode

More accurately, the guy was stealing his down-payment from his landlord. . . .


25 posted on 08/09/2021 1:06:38 PM PDT by RatRipper ( Democrats and socialists are vile liars, thdieves and murderers - enemies of good and America.)
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To: Oldeconomybuyer

“Two separate programs have been established: ERA1 provides up to $25 billion under the Consolidated Appropriations Act, 2021, which was enacted on December 27, 2020, and ERA2 provides up to $21.55 billion under the American Rescue Plan Act of 2021, which was enacted on March 11, 2021.”

Tenants under the original CDC “moratorium” were expected to apply for rental payment help. Many had seven months to do so.


26 posted on 08/09/2021 1:07:01 PM PDT by Brian Griffin
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To: Brian Griffin

https://home.treasury.gov/policy-issues/coronavirus/assistance-for-state-local-and-tribal-governments/emergency-rental-assistance-program


27 posted on 08/09/2021 1:07:47 PM PDT by Brian Griffin
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To: Oldeconomybuyer

Looks like even the judges no longer have “standing” to do anything about this clear violation of the “takings clause”.


28 posted on 08/09/2021 1:09:59 PM PDT by glennaro (Dennis Prager: "Until it's safe" means "Never")
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To: Oldeconomybuyer
Extending the eviction moratorium in violation of the courts was a flagrantly impeachable offense. There wasn't even the gray area of doing something unconstitutional and then waiting for the courts to declare it unconstitutional after the fact. The courts already told President Biden he couldn't do this and he went and did it anyways!

This isn't a case of "Let's impeach this guy because we don't like him." as the Democrats did with President Trump.

It was a flagrant and deliberate violation of the Constitution! No ifs ands or buts about it!

29 posted on 08/09/2021 1:10:59 PM PDT by Drew68
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To: escapefromboston

What do you call a failed attorney?

Wait for it...

“Your Honor.”


30 posted on 08/09/2021 1:12:46 PM PDT by AbolishCSEU (Amount of "child" support paid is inversely proportiongte tfo mother's actual parenting of children)
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To: Oldeconomybuyer

“I have used best efforts to obtain all available government assistance for rent or housing;”

“I am using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other non-discretionary expenses.”

Original CDC declaration form
https://www.boston.gov/sites/default/files/file/2021/03/CDC%20Declaration%2C%20English.pdf


31 posted on 08/09/2021 1:16:42 PM PDT by Brian Griffin
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To: Oldeconomybuyer

Article 8 of the US Constitution:

“All the foregoing and any Amendments attached thereto are suspended indefinitely in case of a pandemic. Should there be a pandemic all power will be ceded to the Executive Branch who will have absolute unquestioned say on all matter Great and Small.”


32 posted on 08/09/2021 1:27:14 PM PDT by freedumb2003 (The democrats have just replaced KKK with CRT. /Kevin McCarty 7/6/21)
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To: RatRipper

100% lucky he dint get dead


33 posted on 08/09/2021 1:27:48 PM PDT by Chode (there is no fall back position, there's no rally point, there is no LZ... we're on our own. P144:1)
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To: Oldeconomybuyer

34 posted on 08/09/2021 1:53:56 PM PDT by CodeToad (Arm up! They Have!)
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To: Oldeconomybuyer

“Judges” are tyrants in black robes.


35 posted on 08/09/2021 2:04:37 PM PDT by wastedyears (The left would kill every single one of us and our families if they knew they could get away with it)
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To: Oldeconomybuyer

The CDC is not a law-making body. Notes to that affect can be found close to the beginning of the Constitution.


36 posted on 08/09/2021 2:08:03 PM PDT by GingisK
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To: Oldeconomybuyer

The judge doesn’t want to wake up dead tomorrow morning.


37 posted on 08/09/2021 2:10:07 PM PDT by gitmo (If your theology doesn't become your biography, what good is it?)
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To: Oldeconomybuyer; All
"Judge doubts eviction ban, but may lack power to stop it"
FR: Never Accept the Premise of Your Opponent’s Argument

With all due respect to the post FDR era, institutionally indoctrinated judge, the judge is asking the wrong question imo.

More specifically, patriots are reminded that the states have never expressly constitutionally given the feds the specific power to dictate either INTRAstate quarantine policy, or to dictate INTRAstate rental policy.

Regarding no federal power to dictate intrastate healthcare-related policy, here's excerpts from the historical writings of several constitutional experts starting with PresidentThomas Jefferson, the excerpts clarifying no federal power to dictate such policy.

Also, if the feds actually did have the constitutional authority to dictate intrastate quarantine and rental policy, then lawmakers would have to take full responsibility for such policy whether they want to or not, and not protect their voting records by hiding behind non-elected bureaucrats like those running the constitutionally overreaching CDC.

The ultimate remedy for unconstitutionally big federal government run by desperate, alleged election-stealing Democrats oppressing everybody under their boots with planned mandatory experimental "vaccine..."

Patriots need to primary federal and state elected officials who don't send voters email ASAP that clearly promises to do the following.

Federal and state lawmakers need to promise in their emails to introduce resolutions no later than 100 days after start of new legislative sessions that propose an amendment to the Constitution to the states to repeal the 16th and ill-conceived 17th Amendments.

38 posted on 08/09/2021 2:10:09 PM PDT by Amendment10
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To: Oldeconomybuyer

The commie judge in Texas disagrees.


39 posted on 08/09/2021 2:50:09 PM PDT by Luke21
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To: I want the USA back

Predating that was the auto company bailouts. The gubermint took them over, stiffed the bondholders (who had legal contract and first right), and gave the UAW more control over the companies........ contracts haven’t followed the “rule of law” for quite some time.


40 posted on 08/09/2021 3:49:53 PM PDT by Repeat Offender (While the wicked stand confounded, call me with Thy saints surrounded.)
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