If you want to know how Americans have been indoctrinated, since West Coast Hotel v. Parrish and U.S. v. Carolene Products, NOT to ask, “Gee, what is the factual test for determining whether a fact is a right,” then just look at Obamacare. It raised the level of scrutiny for medical care. As the Chief Justice said, “Eventually everyone will need medical care.” That is acknowledging that the United States applied the test to medical care and found that the FACT of medical care is a RIGHT.

The test comes from West Virginia v. Barnette, which is the most important case in American law. A fact is a right if it is

1. a fact of human experience
2. which history demonstrates
3. is unaffected by assaults upon it.

That is, you have to argue from HISTORY that a fact is a robust, recurrent and resilient fact of human experience. Didn’t know that that was how you find a right, did you? Well, you do now. Look at the Heller and McDonald gun cases. This is the test they used. The opposition? Well, they just invoked the good old scrutiny regime wand: “Hey, we got elected. We think this is the right policy. The end.” But it ISN’T the end.

This same test was applied to win the right to abortion, to win the right to gay marriage, ALL individually enforceable rights pass this Barnette test.

Eventually everyone will need medical care. Yeah, and eventually everyone will need housing. And eventually everyone will need education. Call it the “eventually need” test if you like. But it is the test Richmond is applying to housing in concluding it is going to seize mortgages. Which means that it is establishing an individually enforceable right to housing, raising housing above the minimum scrutiny level imposed on it in Lindsey v. Normet. Get used to it.

No wonder there are so many problems in this country! People are so ignorant of the law that they can’t defend themselves.

Wow, how ignorant are you?

Understanding Levels of Scrutiny
http://www.ucs.louisiana.edu/~ras2777/civrights/levelsofscrutiny.htm‎
Some discrimination is constitutionally permissible, some of it is not. … Minimal scrutiny—also called the rational basis test—is the legal standard for determining …

THE FILING OF ANY EMINENT DOMAIN ACTION BY RICHMOND ON MORTGAGES WOULD BE ON THE BASIS OF SOME SORT OF ECONOMIC IMPACT OR BLIGHT. IT HAS TO BE A PUBLIC PURPOSE NOT AN ACTION THAT SERVES SOLELY A PRIVATE PURPOSE.

YOU SAY THAT EMINENT DOMAIN CAN BE FOR ANYTHING GOVERNMENT WANTS IT TO BE. NO OFFENSE, BUT YOU SAY MY STATEMENTS ARE RIDICULOUS? HOW ABOUT GOVERNMENT JUST TAKING BANK ACCOUNTS THEN INSTEAD OF HAVING TO GO TO VOTERS TO RAISE TAXES?
EMINENT DOMAIN USED TO ALLEVIATE ECONOMIC DISTRESS OR DAMAGES HAS TO HAVE SOME SORT OF LIMIT.

WHICH LEADS TO THE POINT I AM RAISING IN MY ARTICLE: THE ONLY MORTGAGES THAT WOULD RISE TO THE LEVEL OF A PUBLIC NECESSITY WOULD BE TRAPPED LOANS.

THANKS FOR THE COMMENT THOUGH. THIS MAKES FOR GOOD DISCUSSION AND HOPEFULLY WILL RAISE LEGAL, VALUATION, AND PUBLIC POLICY ISSUES THAT SHOULD BE HASHED OUT BEFORE THE COURTS REVIEW WHATEVER ACTIONS RICHMOND TAKES.

BTW, if they did start in state court they could not move to a federal court later, it would all be decided in the state courts with an appeal to the SCOTUS as a last resort after the state courts have ruled.

This statement shows ignorance of the law. Eminent domain can be exercised as long as it is “rationally related to a legitimate government purpose.” That is minimum scrutiny, and eminent domain is subject only to minimum scrutiny. “Public necessity” is no part of the law of eminent domain. Show me the case law which says that it is. Yours is a ridiculous comment.

The real issue is whether Richmond will raise the level of scrutiny for HOUSING policy if it exercises eminent domain. And the answer is yes, it will raise the level of scrutiny for housing policy above Lindsey v. Normet minimum scrutiny. Richmond will be elevating housing above property, both of which traditionally enjoyed only minimum scrutiny. Housing will, as a matter of course, have the level of its scrutiny raised by this eminent domain action.

Two issues result from that: if Richmond raises the level of scrutiny above minimum scrutiny (to either intermediate or strict scrutiny), those who rent can force it to take rental agreements, and those whose mortgages were NOT seized, can sue to force Richmond to seize them. This also means that unlawful detainer actions for housing in Richmond cannot go forward, at least for nonpayment of rent or foreclosure. And how can foreclosures go forward in Richmond under a higher level of scrutiny for housing?

Second, what about Koontz. That case raised the level of scrutiny for PROPERTY, as even Justice Kagan’s dissent showed. So Wells now has a right ABOVE minimum scrutiny for property. Will they argue it? Also, the homeowners themselves have a right to property IN THE MORTGAGE if they don’t like Richmond’s ideas about what to do with seized mortgages.

You see, it really does help to be familiar with the law. Try it, sometime.