Jay Reding.com

No, The Fifth Amendment Has Not Been “Overruled”

Another round of left-wing hysteria is hitting sites like Digg and Slashdot making the argument that President Bush has (gasp!) “overturned” the Fifth Amendment with this Executive Order. As typical, this hysteria is completely unwarranted by the facts.

Presidents have traditionally had the power to order the seizure of assets during wartime. The most famous case dealing with this issue, and one of the most important cases in Constitutional Law is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). That case deals with President Truman’s attempted government seizure of a steel mill that produced war goods for the Korean War. Workers at the mill had gone on strike, and Truman had decided to seize the mill rather than risk it being shut down.

The Supreme Court overruled Truman’s order to seize the mill, but Justice Robert Jackson’s concurring decision ended up being more important than the Court’s opinion itself. Justice Jackson laid out the three categories of Presidential action: 1) When the President acts according to a law passed by Congress, the Courts should be the most deferential to the President; 2) when the President is acting within their Article II powers but Congress has been silent, less deference is due, and finally 3) when the President acts against the will of Congress little, if any, deference is due.

Justice Jackson felt that the seizure of the steel mill was a “Category III” action — Congress had specifically limited the President’s powers in prior legislation, even though President Truman had asked for them. Therefore, Truman was acting outside of Congress and outside of his powers, and the seizure was illegal.

With that history lesson behind us, we turn to what the real legal substance of Bush’s Executive Order is.

In 1977, Congress passed The International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701-1707. The IEEPA codifies the President’s power to seize private property for reasons of national security.

In order to seize property, the President must first declare a national emergency. This emergency must be either wholly or substantially foreign in nature. 50 U.S.C. § 1701(a).

During the Iranian hostage crisis, Dames & Moore, an American company that was (ironically enough) working with Iran to build a nuclear reactor had substantial amounts of money invested in the Pahlavi regime. When the Shah’s rule ended, they wanted to sue to recover that money from the Iranians.

However, as part of the deal releasing the American hostages, President Carter had signed an Executive Order (Executive Order 12170) which released all attachments on Iranian assets, transferred them in escrow to the Bank of England, and allowed for a US-Iranian tribunal to handle all claims. Dames & Moore would not be allowed to recover under this scheme, so they filed suit against the Secretary of the Treasury to recover their assets.

In Dames & Moore v. Regan, 453 U.S. 654 (1981), the Supreme Court unanimously upheld the President’s authority under the IEEPA to nullify the attachments and transfer the funds into the arbitration account. The Court found that President Carter was acting in a “Category I” situation under Youngstown — he was acting with the prior approval of Congress and the courts owed him a great deal of deference.

Back to Bush’s Executive Order, it essentially does the same thing as Carter’s Executive Order 12170. It states that the President, having already declared a state of national emergency for the war in Iraq, has the power to seize property being used to provide material support to the enemy in Iraq.

So, does this mean that the Firth Amendment is now “overturned” and the President can seize the property of whomever he wants? No, it doesn’t, and the arguments that say that it does are misinformed.

Can the President seize Michael Moore’s property for supporting the terrorists in Iraq? No, because it has to be material support. So, if Michael Moore donated 5% of the profits from Sicko to the Mahdi Army, yes, the President could probably invoke the IEEPA and attach that 5%. Under this Executive Order, he wouldn’t have to tell Mr. Moore in advance, which is what Sec. 5 of the Bush Executive Order is all about.

Ah, but what if Mr. Moore then decided to sue the government, claiming that he mistakenly believed that the Campaign for the Extermination of the American Enemy was really just Rep. Nancy Pelosi’s PAC? Does this Executive Order prevent him from suing the government?

Again, no, it does not. Mr. Moore can still sue to recover his assets — the IEEPA does not limit anyone’s rights to sue.

But doesn’t this violate the Fifth Amendment? Well, the first step is to actually look at the text of the Firth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth is a very dense Amendment, but the part we’re concerned with is the second to the last clause about Due Process. The courts have continually held that the usage of the IEEPA is not a violation of the Fifth Amendment. Chang v. United States, 859 F.2d 893 (Ct. App. Fed. 1988). Essentially, property is “taken” under the Fifth Amendment when that taking places a burden on a person that fairness and equity demand should be placed on all. Armstrong v. United States, 364 U.S. 40, 49 (1960). There’s no set definition of what constitutes fairness and equity, it’s up to the courts to decide whether the government’s interests are sufficient to outweigh the property interests of the individual. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978).

There’s no violation of Due Process here because the President is not unilaterally deciding that he’s going to seize property. This Executive Order, like the one in Dames & Moore is a “Category I” order — President Bush is invoking the IEEPA, which authorizes him to do exactly what he’s doing — take property being used to assist an enemy of the United States in order to prevent it from harming the national security of the United States. If that “overturns” the Fifth Amendment, then every invocation of the IEEPA “overturns” the Fifth Amendment. Which means that President Clinton also “trampled on the Constitution” when he invoked the IEEPA against UNITA (an African terrorist organization), against Serbia, and against international drug dealers. (The latter of which is much more constitutionally problematic than the Bush Executive Order.)

But, the argument goes, what prevents Bush from using this “national emergency” to justify broader takings? Like seizing the assets of everyone who watched Fahrenheit 9/11?

One word: Congress.

Under the IEEPA, Congress can “undeclare” a Presidential state of emergency under the IEEPA. 50 U.S.C. § 1706(b). Congress can pass a concurrent resolution that states that the national emergency is over and the President’s powers under the IEEPA are immediately terminated.

The arguments that the Fifth Amendment have been “shredded” and the Fifth has suddenly been “overruled” are based more on hysteria than anything else. Granted, knowing about Dames & Moore is hardly a requirement for citizenship in this country, but at the same time extraordinary claims should require extraordinary proof. It seems like every time a layperson argues that some part of the Constitution has been trampled, it never seems to occur to them to actually take a look at the text of the Constitution. People make these sort of hysterical arguments all the time, and few bother to actually look at the substantive law and see what’s really going on.

So, what’s the harm of all this? People make hysterical arguments all the time, right?

It’s the “boy who cried wolf” problem. If we have hysterical cries about civil rights all the time based on nothing more than partisan prejudices, it’s a lot harder for people to take real violations of civil rights seriously. These frequently hysterical accusations numb people to the idea that the government can take actions which are deeply injurious to the Constitution. If 99% of the time a claim of an action being unconstitutional is a silly partisan argument, that 1% can easily slip by the consciousness of the public.

This Executive Order is a straightforward invocation of the International Emergency Economic Powers Act. It is not a “power grab” by the Bush Administration — it was passed by Congress in 1977, during the Carter Administration. It is not an unprecedented act, every President since has invoked the IEEPA for various reasons. It does not apply to groups who are not giving material support to terrorist groups in Iraq. It does not remove anyone’s right to judicial redress. It can be overridden by an act of Congress. It does not “trample on the Constitution,” it does not “overrule” the Fifth Amendment, and it does not signal the dawn of fascism.

People have the right to their own opinions, but not their own facts, and the people who have flogged this story are practicing the Paranoid Style in American Politics — the sort of grand conspiracy theories preferred by radical groups like the John Birch Society who 50 years ago saw Communist conspiracies to shred the Constitution everywhere they went. That sort of paranoia is not healthy, not for the people who frighten themselves with it, and not for the country.

8 responses to “No, The Fifth Amendment Has Not Been “Overruled””

  1. Mentoc says:

    Wait, we’re in a state of national emergency? Right now?

    I’m not saying you’re wrong but do you have evidence of that?

  2. Jay Reding says:

    Wait, we’re in a state of national emergency? Right now?

    We’re technically in several. Declaring a state of national emergency isn’t as ominous as it sounds, it’s largely a procedural matter right now. For instance, in the 1990s, President Clinton declared a state of national emergency over drug trafficking that is still in effect.

    The emergency Bush uses for the IEEPA in the current Executive Order was declared in Executive Order 13303. Basically, it declares that there’s a national emergency in terms of the rebuilding of the Iraqi economy, so certain measures (like invoking the IEEPA) are needed to prevent people from financing terrorism in Iraq.

    Declarations of national emergency tend to be very narrow these days, it’s quite rare for a national emergency to deal with more than one issue at a time — mainly because Congress has the power to nullify them if they stretch too far.

  3. Mentoc says:

    Hrm, I think there was a novel I read once that dealt with the idea of a government using a perpetual state of national emergency/war for nefarious purposes. Can’t remember what it was called, though.

    Declaring a state of national emergency isn’t as ominous as it sounds, it’s largely a procedural matter right now.

    I find that much more worrying than the actual state of emergency, I must say.

  4. Nicole says:

    So what you’re saying is – it’s ok to change the Constitution if someone says its an emergency? Since when have the basic rights of American citizens become secondary to protecting Iraq? I hope people read this executive order for themselves. It basically says that if I disagree with military action in Iraq and donate money to a peace organization all my property will be taken away. Where is the freedom of speech in that? How does that help America?

  5. Jay Reding says:

    So what you’re saying is – it’s ok to change the Constitution if someone says its an emergency?

    No, this rule doesn’t change the Constitution at all — if anything, IEEPA limits what the Executive Branch can do. Prior to IEEPA, the President didn’t need any statutory authorization to seize enemy assets — which is what Truman tried to do in Youngstown Steel.

    Since when have the basic rights of American citizens become secondary to protecting Iraq?

    They haven’t. You still have the right to judicially contest any government seizure. The IEEPA doesn’t add or subtract any rights from the American people.

    I hope people read this executive order for themselves.

    I would hope so too, but it’s quite clear you haven’t.

    It basically says that if I disagree with military action in Iraq and donate money to a peace organization all my property will be taken away.

    No, it doesn’t. Not even close.

    If you donate money to a terrorist group, then yes, the government can attach your property. But that organization must supply material support to a terrorist organization in Iraq. If you’re donating to Code Pink, MoveOn.org, or any other “peace” group then there’s no need to worry. If you’re donating to the Benevolence International Foundation, then you might be in trouble.

    And that assumes that the government can attach all your property, and not just the property being used to fund a designated terrorist group — which based on my reading of the IEEPA and the one must likely to be upheld by the courts, they can only attach the money send to the terrorist group.

    Again, if you’re read the post, you’d already understand why this is the case.

    Where is the freedom of speech in that? How does that help America?

    The Constitution has never interpreted “freedom of speech” as including the right to fund terrorism. This law doesn’t apply to you, it applies to people who are providing material support for terrorism. The hysteria over this order is completely unwarranted.

    The very same bill was used to fight apartheid in South Africa in the 1980s — does that mean that the Constitution was trampled upon then?

  6. Mentoc says:

    People have the right to their own opinions, but not their own facts, and the people who have flogged this story are practicing the Paranoid Style in American Politics

    But, say, Michael Chertoff issuing terror alerts based on nothing but his gut, that’s not the paranoid style?

  7. Lance W says:

    The executive order doesn’t say much of what you say either. You are reading into it what you want. Others are reading other ways it COULD be interpretted. The problem is that it is far too vague to be anything but scary.

    We are not AT WAR. We are not at war. We are not at war. We are not at war.
    How many times does it take to get it?

    There’s no communist Russia to scare people with. China owns us so we can’t demonize them. What is it about conservatives that they NEED a war of some kind to feel at place in the world. We are policing Iraq. We are not at war with them. And I am too tired to address the silly “war on terror” slogan / propaganda.

  8. Jay Reding says:

    The executive order doesn’t say much of what you say either. You are reading into it what you want. Others are reading other ways it COULD be interpretted. The problem is that it is far too vague to be anything but scary.

    No, there’s not much ambiguity at all — IEEPA limits what the President can do, and this Executive Order is a very straightforward invocation of IEEPA. It’s just that nobody seems to bother to read what IEEPA says rather than making up their own silly conspiracy theories.

    Even there’s some ambiguity at the margins, there’s absolutely no reasonable or sound argument that says that this Order violates the Fifth Amendment.

    We are not AT WAR. We are not at war. We are not at war. We are not at war.

    Somebody should tell that to bin Laden — because he sure as hell thinks we are.

    How many times does it take to get it?

    You can repeat the same thing over and over again, but it still won’t be true. We are at war with a radical ideological movement who would love nothing more than to kill a whole lot of us. Sadly, it’ll take another September 11 before some people remember who we’re fighting…

    There’s no communist Russia to scare people with. China owns us so we can’t demonize them. What is it about conservatives that they NEED a war of some kind to feel at place in the world. We are policing Iraq. We are not at war with them. And I am too tired to address the silly “war on terror” slogan / propaganda.

    We’re not at war with the government of Iraq, but we’re definitely at war with al-Qaeda, and quite frankly we’re in a proxy war with Iran. The “war on terror” isn’t a slogan, it’s reality, whether you choose to acknowledge it or not. Just because al-Qaeda has had a string failed attacks of late doesn’t mean that they’re not dangerous — all it takes is one successful attack to cause another mass casualty event.