Government Taking Without Due Process

The Fifth and Fourteenth Amendments to the United States Constitution mandate in pertinent part that “No person shall … be deprived of … property without due process of law.”  

Due process of law requires notice to the person from the government that the government is claiming the right to take the person’s property; a hearing in a court of law presided over by a judicial authority to determine whether the government has a proper legal claim against the person’s property; and the right of the aggrieved person to appeal the decision of the judge to a higher court.  

This means that only judges and not legislators or bureaucrats have the authority to decide whether the government has a right to claim a person’s property as a fine or penalty for violating a law.  

The founding fathers of this nation, in regard to providing for the proper administration of justice to all persons, intended that due process of law be a safeguard from any arbitrary taking of property by the government outside the sanctions of the law, and it is the judicial branch of the government that properly determines the law – not the legislative or executive branches.

But over the many years since the Fifth Amendment was ratified, governments everywhere have been steadily chipping away at the due process of law requirement safeguards; so much so that today, in many instances, especially in civil as opposed to criminal matters, the government simply claims the legal right to seize property without bothering to observe due process.

The police, for example, in many jurisdictions today, simply seize automobiles, houses, and other property based upon mere suspicion that an offense has been committed in connection with the property, without providing notice or hearing in a court of law. They take and keep the property, under the dubious “authority” of civil forfeiture laws, laws which violate the Fifth Amendment, even though the person who owns the property has not been tried and convicted of any crime.

Now, the federal Environmental Protection Agency (EPA) is claiming that it has the right to garnish the wages of individuals who have merely been accused of violating its rules, all without the cumbersome necessity of first obtaining a court order after a judicial hearing, i.e., providing the person with traditional due process of law. 

In short, the government agency believes it can take a person’s property after determining the legality of doing so without the participation of a judge. It’s like the EPA has now become the judge, jury and executioner all rolled into one regarding the administration and application of its own rules.

"The EPA has a history of overreaching its authority. It seems like once again the EPA is trying to take power it doesn’t have away from American citizens,” explains U.S. Sen. John Barrasso, R-Wyo.

This new claimed government authority would give the EPA “unbridled discretion" over the process of challenging fines, opined David Addington, group vice president for research at the conservative Heritage Foundation. The rule not only puts the burden of proof on the debtor, rather than the agency, but also allows the EPA to decide whether a debtor even gets a chance to present a defense before picking whomever it chooses to serve as a hearing officer.

It’s just one more of the ever escalating examples of statist government taking without due process.