Civics 101 taught me that a “Taking” of property by the government requires compensation. This is a continuation of an English precedent going back centuries, so it’s not surprising that a court overturned, as a Taking, the eviction moratorium, in response to the economic fallout of the Covid 19 pandemic. The specifics of the case are surprising, though, and reveal so many of the fault lines in how our system works (and doesn’t):
It is astonishing that such an outright affront to such a bedrock principal took a year to wend its way through our rarefied-Kabuki-theater, moneybags-maze of a legal system. Relief, a year later, will not be helpful to small-pocket landlords. Supporters salve the guilt of wanting such a taking by highlighting the institutional, deep-pocket landlords. But, as Orwell once chronicled, the most common type of “slumlord” is the widow who has 3 properties: she lives in 1, and uses the other 2 to live on. If a policy is for the public good, the public should pay, not some third party (widow or institution) unfortunate enough to be exposed to paying for the good the public wants for someone else.
A similar outrage of the law being dead by delay came when Michigan’s state legislature sued for a court order to try to stop Gretchen Whitmer from forcing Covid patients into the nursing homes. That decision exposed the most at-risk to the most-concentrated risks. By the time the meandering wend was won, the Covid fire consumed a similar percentage of the vulnerable as were sacrificed on the alter of arrogance here in New York State. If lawmakers cannot stop an obvious medical mistake in a timely fashion, a mistake being forced by a non-clinician, a mistake no first-year intern would make (or an assistant nurse), then it’s hard to believe that the law is functional, for all of its uniquely ginormous American edifice (those failures are related). A functional legal system should be able to act in days on an issue of this urgency (and clarity). That we have a legal system only dedicated to form, rather than function, is a hobby horse I have long rode.
Another crack in our system is revealed by the fact that our ancient privilege against takings was never tested, constitutionally. The policy could never have won there (and didn’t win there). The decision was implemented by an alphabet-soup agency of unelected experts. While few literate in the issues of America’s poor handling of the Covid crisis would bestow the title of expert on any of our institutions, and most definitely not on the CDC. Their mistakes were too many for catalog here, but suffice to say the only approved Covid test, the only one that could be used without expensive capture into our legal maze, could not distinguish Covid from lab water. Now their expertise extends to being able to violate a bedrock relationship between the People and their government?
It is fitting that we should be violated so, by an alphabet agency of unelected, unaccountable pseudo-experts. Unaccountable, in that we have only a remote and roundabout route to remedy their incompetence (even our elected representatives are barely accountable, since they get reelected 90% of the time). Alphabet-soup agencies of unaccountable experts are doing almost all of our legislating. It would seem, to this scribbler’s eyes, an inevitability, that giving over such power would lead to an eventual usurpation of bedrock rights.
Like the diminishment of our right to free speech (also centuries old) in the face of cancel culture, and lawsuits around expression that can cost even the winner the value of a house, what use is a ‘right’ if it is ruinously expensive to exercise? What good is the right to property if it will be lost in the process of defending it? What good is a legal protection against medical malpractice if it can go unchecked for the fatal months it takes to address it?
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