I spent some time this weekend looking at the CDC's extension of the moratorium. I understand the concerns behind those in favor. I really do. And I have zero investments in residential real estate leasing. Still, I am struggling to understand the constitutionality of this action.
Ignoring, for example, the highly questionable issue of whether the CDC has the power and authority to issue the rule and whether POTUS should have decided to enforce the rule despite the SCOTUS opinion, I have some more basic concerns.
How is this not a "taking" in violation of the 5th Amendment? There are five general types of "takings" under this analysis. Not going to bore y'all with the legalese. Here, owners of rental properties are being forced by governmental action to allow tenants to live in investment rental property without paying rent. The bottom line is that landowners have to be compensated. This is a "taking" as it relates to investment rental property. These property owners must be made whole. I understand that the extension is intended to ultimately help get money in their hands. That's putting the cart before the horse. There should have been a better plan in place at the very beginning. Here, the Apple Dumpling Gang (that reference is for my fellow olds) appropriated the money, but it's not getting into the hands of the folks entitled to it. In part, due to Congress. And in part, due to state and city officials.
There are some questionable due process issues as well. Take, for example, an eminent domain taking. There are all sorts of due process hoops that have to be jumped through before a taking can occur. None of those happened here. This isn't really an eminent domain situation, but still, landowners and investors with rental properties are entitled to due process. Here? None.
Third, for what may be a first in my three decade legal career, this implicates the 3rd Amendment to the extent any member of the military is living in property subject to the eviction moratorium. This lesser known amendment precludes the forcible housing of military personnel in a citizen’s home during peacetime. The property owners had no choice here. An interesting constitutional issue.
I understand we have been in a pandemic. I understand desperate times call for desperate measures. And I will always lend a hand to someone in need. I have no desire to see folks evicted in normal times, much less during a public health crisis. But why doesn't the rule of law matter here? And why in the hell didn't Congress, the states and the cities address this properly in the first place? This is political malpractice. Renters are at risk of eviction. Landowners aren't getting paid rent on their rental properties, a fair number of which are mortgaged. This is a good old fashioned cluster fornication.
I share Judge Friedrich's concerns about the authority of the CDC and POTUS to extend the moratorium. I also think she's bound by the DC circuit court of appeals, so SCOTUS will have to fix this. I suspect it will be an epic Kavanaugh opinion. In the meantime, renters and landlords are twisting in the wind. Shameful.
Ignoring, for example, the highly questionable issue of whether the CDC has the power and authority to issue the rule and whether POTUS should have decided to enforce the rule despite the SCOTUS opinion, I have some more basic concerns.
How is this not a "taking" in violation of the 5th Amendment? There are five general types of "takings" under this analysis. Not going to bore y'all with the legalese. Here, owners of rental properties are being forced by governmental action to allow tenants to live in investment rental property without paying rent. The bottom line is that landowners have to be compensated. This is a "taking" as it relates to investment rental property. These property owners must be made whole. I understand that the extension is intended to ultimately help get money in their hands. That's putting the cart before the horse. There should have been a better plan in place at the very beginning. Here, the Apple Dumpling Gang (that reference is for my fellow olds) appropriated the money, but it's not getting into the hands of the folks entitled to it. In part, due to Congress. And in part, due to state and city officials.
There are some questionable due process issues as well. Take, for example, an eminent domain taking. There are all sorts of due process hoops that have to be jumped through before a taking can occur. None of those happened here. This isn't really an eminent domain situation, but still, landowners and investors with rental properties are entitled to due process. Here? None.
Third, for what may be a first in my three decade legal career, this implicates the 3rd Amendment to the extent any member of the military is living in property subject to the eviction moratorium. This lesser known amendment precludes the forcible housing of military personnel in a citizen’s home during peacetime. The property owners had no choice here. An interesting constitutional issue.
I understand we have been in a pandemic. I understand desperate times call for desperate measures. And I will always lend a hand to someone in need. I have no desire to see folks evicted in normal times, much less during a public health crisis. But why doesn't the rule of law matter here? And why in the hell didn't Congress, the states and the cities address this properly in the first place? This is political malpractice. Renters are at risk of eviction. Landowners aren't getting paid rent on their rental properties, a fair number of which are mortgaged. This is a good old fashioned cluster fornication.
I share Judge Friedrich's concerns about the authority of the CDC and POTUS to extend the moratorium. I also think she's bound by the DC circuit court of appeals, so SCOTUS will have to fix this. I suspect it will be an epic Kavanaugh opinion. In the meantime, renters and landlords are twisting in the wind. Shameful.
