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I didnt say the problem was "solved." In fact, I am admitting the virus will be with us for the foreseeable future and we as a society need to learn to live with it just like we do other viruses. The issue at hand is the Government's overreaching powers being used to effectively shut down small businesses which is unconstitutional.
I believe you would admit that at SOME POINT the Governor will need to cede his emergency powers. At SOME POINT the State will need to allow restaurants and other businesses to serve at their maximum capacity. At SOME POINT, concerts and large events will need to take place again. For somebody like you, when is that? When the virus is fully squashed? Does that seem realistic or even possible?
First, there is nothing unconstitutional about the actions that have resulted in businesses being closed. It's easy to make statements like that but there is nothing in the Constitution that bars such actions. The "overreaching powers" you claim are well within the statutory powers of government.
The problem is neither solved nor controlled. Not until the pandemic can be considered under control can all regulations and restrictions be abandoned. That will never happen until it is universally accepted that we have a public health crisis that needs to be dealt with scientifically rather than politically. Not at the local level, the state or federal level, but globally.
In the grand scheme of things I see little urgency for activities like large scale concerts and little consequence in delaying the return of such events.
We must not isolate ourselves against the rest of the world but follow best practices that have been based on modern medicine rather than posturing. Understanding the easy transportation of people and the virus across state lines we must have a strong consistent message throughout the country to effectively combat the disease. Only when that occurs will we be able to take meaningful steps towards nationwide normalcy. At that time emergency powers will have served their purpose.
First, there is nothing unconstitutional about the actions that have resulted in businesses being closed. It's easy to make statements like that but there is nothing in the Constitution that bars such actions. The "overreaching powers" you claim are well within the statutory powers of government.
.
I personally long for the day that people who claim things are unconstitutional are then required to be tested on their knowledge of the Constitution.
Heck, the hilarity that will ensue with just the "Freedom of Speech" crowd will be entertaining for DECADES.
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Soooo . . . . this is what happened with this thread. No one was at fault ; it was just
a mix-up :
The problem in our thread begins with post 99, where nuts2uiam left the closing quote tag out of a post. After that,
whenever somebody tried to quote, they got an extra quote tag, making it hard to tell who said what. Please try to
remember to include the closing quote tag when you are quoting someone else.
Thanks .
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Last edited by nancy thereader; 07-23-2020 at 06:21 AM..
First, there is nothing unconstitutional about the actions that have resulted in businesses being closed. It's easy to make statements like that but there is nothing in the Constitution that bars such actions. The "overreaching powers" you claim are well within the statutory powers of government.
Quote:
Originally Posted by TJLamb0518
I personally long for the day that people who claim things are unconstitutional are then required to be tested on their knowledge of the Constitution.
Heck, the hilarity that will ensue with just the "Freedom of Speech" crowd will be entertaining for DECADES.
To koko: That's arguable.
To TJ: See below.
The 5th Amendment states that “no person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.â€
The second half of that is the Takings Clause which balances the rights of private property owners and the right of the Government to seize private property for the benefit of the public. The Supreme Court recognizes a "regulatory taking" which is essence is when Government regulation prevents a private property owner from depriving value from their property. This would cover the "non-essential" business closure issue.
The Government should be liable for lost revenue these businesses incurred while they were unilaterally shut down by the Government. Either that or allowed to open, but then restitution would be in order.
Therefore, the Government is arguably acting in a way that is unconstitutional in that small businesses owners are not being compensated for being deemed "non-essential", their capacities reduced, and/or being shutdown indefinitely (such as gyms).
-BREAK-
NYS Executive Law 28 states that the Governor may only declare an emergency when he/she "finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately."
NYS does not provide their definition of a disaster (that I could find). So, at the Federal level, 42 CFR 5122 provides the definition of a Disaster: “Major disaster†means any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby."
Arguably, a pandemic is not a disaster and the Governor is not allowed to unilaterally declare an emergency.
The 5th Amendment states that “no person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.â€
The second half of that is the Takings Clause which balances the rights of private property owners and the right of the Government to seize private property for the benefit of the public. The Supreme Court recognizes a "regulatory taking" which is essence is when Government regulation prevents a private property owner from depriving value from their property. This would cover the "non-essential" business closure issue.
The Government should be liable for lost revenue these businesses incurred while they were unilaterally shut down by the Government. Either that or allowed to open, but then restitution would be in order.
Therefore, the Government is arguably acting in a way that is unconstitutional in that small businesses owners are not being compensated for being deemed "non-essential", their capacities reduced, and/or being shutdown indefinitely (such as gyms).
-BREAK-
NYS Executive Law 28 states that the Governor may only declare an emergency when he/she "finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately."
NYS does not provide their definition of a disaster (that I could find). So, at the Federal level, 42 CFR 5122 provides the definition of a Disaster: “Major disaster†means any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby."
Arguably, a pandemic is not a disaster and the Governor is not allowed to unilaterally declare an emergency.
Your arguments may be running out.
The first emergency order put in place regarding the COVID-19 pandemic contains a couple of dozen citations from state and federal law to show the authority for such actions. Feel free to examine any you think might not hold up.
I then came across this, which is a hint that your argument is continuing to crumble, if not blow up completely:
"Cuomo is sticking to public health experts’ advice, communicating neither panic nor irrational confidence.
But no one in Albany has yet justified the overbroad toolkit of emergency powers the Legislature handed Cuomo after almost zero discussion or debate last week.
"First, the legislation redefines what the state considers a disaster or emergency, expanding it from an event that’s either already occurring or “imminent†(a word with a specific temporal meaning in case law) to include any “impending or urgent threat.†Climate change would arguably qualify.
"Cuomo, like governors in 35 other states, already had power to temporarily suspend any statute that impeded the state’s ability to respond to an emergency, a serious power intended for sparing use, because it circumvents the democratic process. The new law gives the governor authority to unilaterally “issue any directive†he deems necessary to “cope†with emergencies, a power only shared with North Carolina’s governor."
An act to amend the executive law, in relation to issuing by the gover-
nor of any directive necessary to respond to a state disaster emergency;
making an appropriation therefor; and providing for the repeal of
certain provisions upon expiration thereof
PURPOSE:
This legislation is necessary to ensure the state is protected from a
substantial threat to the public health.
SUMMARY OF PROVISIONS:
Section one amends the executive law to clarify that a disaster declara-
tion can be issued for an urgent or impending threat of wide spread
injury or loss of life resulting from disease outbreak.
Section two amends section 29-a of the Executive Law to allow the Gover-
nor to issue directives when a state disaster emergency is declared to
allow for appropriate response to such disaster.
This is the Senate version of the bill that authorizes the definition change you were looking for and was no doubt passed as written and referred to in the Daily News article cited above.
I personally long for the day that people who claim things are unconstitutional are then required to be tested on their knowledge of the Constitution.
Heck, the hilarity that will ensue with just the "Freedom of Speech" crowd will be entertaining for DECADES.
Quote:
Originally Posted by kokonutty
Your arguments may be running out.
The first emergency order put in place regarding the COVID-19 pandemic contains a couple of dozen citations from state and federal law to show the authority for such actions. Feel free to examine any you think might not hold up.
I then came across this, which is a hint that your argument is continuing to crumble, if not blow up completely:
"Cuomo is sticking to public health experts’ advice, communicating neither panic nor irrational confidence.
But no one in Albany has yet justified the overbroad toolkit of emergency powers the Legislature handed Cuomo after almost zero discussion or debate last week.
"First, the legislation redefines what the state considers a disaster or emergency, expanding it from an event that’s either already occurring or “imminent†(a word with a specific temporal meaning in case law) to include any “impending or urgent threat.†Climate change would arguably qualify.
"Cuomo, like governors in 35 other states, already had power to temporarily suspend any statute that impeded the state’s ability to respond to an emergency, a serious power intended for sparing use, because it circumvents the democratic process. The new law gives the governor authority to unilaterally “issue any directive†he deems necessary to “cope†with emergencies, a power only shared with North Carolina’s governor."
An act to amend the executive law, in relation to issuing by the gover-
nor of any directive necessary to respond to a state disaster emergency;
making an appropriation therefor; and providing for the repeal of
certain provisions upon expiration thereof
PURPOSE:
This legislation is necessary to ensure the state is protected from a
substantial threat to the public health.
SUMMARY OF PROVISIONS:
Section one amends the executive law to clarify that a disaster declara-
tion can be issued for an urgent or impending threat of wide spread
injury or loss of life resulting from disease outbreak.
Section two amends section 29-a of the Executive Law to allow the Gover-
nor to issue directives when a state disaster emergency is declared to
allow for appropriate response to such disaster.
This is the Senate version of the bill that authorizes the definition change you were looking for and was no doubt passed as written and referred to in the Daily News article cited above.
Interesting.
But my argument regarding the 5th Amendment still stands.
But my argument regarding the 5th Amendment still stands.
Feel free to stand there as long as it suits you but I believe you would have a very tough time regarding the "taking" of property argument. It would take quite a feat to demonstrate a temporary restriction of some uses of any property extinguishes its value.
Soooo . . . . this is what happened with this thread. No one was at fault ; it was just
a mix-up :
The problem in our thread begins with post 99, where nuts2uiam left the closing quote tag out of a post. After that,
whenever somebody tried to quote, they got an extra quote tag, making it hard to tell who said what. Please try to
remember to include the closing quote tag when you are quoting someone else.
Thanks .
Thanks Nancy, sorry. Not sure how that happened as I never had it happen before. I feel like typhoid Mary.
Feel free to stand there as long as it suits you but I believe you would have a very tough time regarding the "taking" of property argument. It would take quite a feat to demonstrate a temporary restriction of some uses of any property extinguishes its value.
But have at it!
You do not need to "extinguish" the value of the property. You just need to prove that the Government's regulations are precluding you from deriving income/revenue from your property. Clearly, the shutdowns are doing this.
There are court cases around the country making this argument so it will be very interesting to see how they play out. Unfortunately, small businesses already suffering do not have the money to hire attorneys to fight with the Government so most will do nothing. This is an unprecedented time in our history but I believe an argument regarding Regulatory Taking under the 5th Amendment could be made and should be adjudicated.
I am sure you would agree that the Government should definitely NOT be allowed to impose unilateral sanctions on businesses without being challenged in the courts.
But to say there is no constitutional argument to be made, as you alluded in one of your prior posts, is simply false.
Feel free to stand there as long as it suits you but I believe you would have a very tough time regarding the "taking" of property argument. It would take quite a feat to demonstrate a temporary restriction of some uses of any property extinguishes its value.
But have at it!
I was wondering about that.....the government has not been seizing all those businesses that they shut down, have they? Because I really don't see them running all the malls and movie theaters and bars once this is all over.
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