One of the core arguments the government made during the appeal of Judge Lamberth’s GSE lawsuit dismissal was that shareholders could not sue the government because, according to them, no taking had actually taken place. Just yesterday the Federal Circuit clarified for us all what a “taking” is:
The government in these various cases has argued every side of the coin in attempts to win. The plus to that is essentially the old saying “throw a bunch of shit on the wall and see what sticks”. Some of it sticks and they’ve won these earlier cases. However, those decisions are now immortalized as judicial precedent making their arguments in other cases in which they argued the exact opposite look a bit flaccid.
The issue now is becoming, since the government here has argued the exact opposite of what they argued in Piszel (and this is happening in other cases also) how does the government successfully say to the appellate court “yes, we argued the opposite in Piszel and the court agreed in its ruling but we believe the law says the opposite her”. OR, do they say the court in Piszel erred in its ruling but because they won they will not appeal?
They can try and have of course but they are painting themselves into a corner with their own arguments and their own counter arguments are becoming materially weaker. Further, we’d be foolish to assume judges are not seeing, as Judge Sweeney called it the government’s “schizophrenic approach” ……
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