Government’s Authority to Confiscate Property During COVID-19 and Beyond

By a Solari Report Subscriber

Introduction—A Very General Overview of Legal Property Confiscation in the U.S.

The issue of property confiscation has become tied into both “the Great Reset” and the COVID-19 pandemic. There are several ways in which people lose their private property, which can either be through government action or through non-government actions. The mechanisms for the United States Government or individual state and local governments to take property have been in place for a very long time.

In the United States, the government has the power of Eminent Domain, which means that it can take property but must pay reasonable compensation for the use of the property. State and local governments have similar eminent domain powers. These powers are enshrined in the Constitution and essentially only require government to pay reasonable compensation for the property it takes.

Beyond eminent domain, the government has “criminal” and “civil” legal means of taking property. For example, most people are familiar with drug seizure laws that allow local and federal law enforcement to seize property used in the illegal drug business. This is called “asset forfeiture” and allows the government to seize assets of criminal suspects. The FBI has a webpage dedicated to explaining the various ways it can seize property.1

Additionally, your property can be seized through a civil legal process. If you owe taxes or a government fine, government lawyers can pursue and obtain orders from courts confiscating your property and selling it. Taxing authorities can seize property for unpaid taxes. Likewise, certain fines can lead to asset seizures and liens being filed on your property.

Government actions are not the only way in which people lose their property. This was never more apparent than during the aftermath of the 2008 housing crash. People, suffering a hiccup in their incomes, who had spent years paying on mortgages and other debts, learned quickly that penalties, late fees, attorney’s fees, and other provisions in their security agreements obliterated any perceived equity in their homes. Many were left without anything after spending months to years trying to go through a horrific loan modification process. Furthermore, people suffering from large medical debts or other debts can either be forced into bankruptcy or have civil judgments entered against them and their property. While there are certain protections in place, most of the time people are left with very little.

This article focuses on two narrow areas where people may lose their property due to government action because of “health emergencies” and “domestic terrorism.”

Laws Related to Health Emergencies

In 2008, the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 was codified as 42 U.S.C. sections 5121–5207. The Stafford Act authorized the use of federal technical, financial, logistical, and other assistance to states and localities declared major disasters or emergencies. This law is now playing a pivotal role in the Covid-19 response.2 It was the Stafford Act that President Trump used as the basis to declare a disaster due to Covid-19.

On April 20, 2020, the National Governors Association issued a memorandum entitled “Overview of State Actions to Commandeer and Inventory Private Property.”3 The memo explains that although the Fifth Amendment to the Constitution limits the government’s broad powers of eminent domain, by requiring “just compensation” for property taken for public use, the Stafford Act allows for the immediate commandeering of private property.4 In other words, the government can take the property now and settle up later.

Individual states have laws that are similar to the Stafford Act, laws that give emergency powers to governors and health department officials. This justified state executive orders such as California’s N-25-20, which allowed health officers to determine how property was used (closing restaurants) and allowed the state to secure for use “numerous facilities to accommodate quarantine, isolation, or medical treatment of individuals.”5 California is just one example, as all states issued emergency declarations issued by governors or departments of health.6 These powers are largely based upon laws enacted long before the current pandemic. It is advisable to get to know your local state and county laws and executive orders as these states of emergency will likely last long into the future.

As stated above, the Constitution’s “Takings Clause” recognizes the power of Eminent Domain of the Federal and state governments. This gives government the ability to take property and provide “just compensation” in return. The classic example is when the government takes someone’s property to build a highway. The state (or local) government has the right to take the property but must pay “just compensation.” The issue of “just compensation” is often a hard-fought battle.

There is a long and complex history of types of takings defined by the United States Supreme Court that has developed a complex area of laws in regard to takings. There are books written on this subject, and it is too much to tackle for the purposes of this article. Suffice to say, we will see litigation related to the regulatory takings of people’s businesses under the pandemic. This would fall under a “regulatory taking” of someone’s property. For a more complete discussion of this issue, see: https://crsreports.congress.gov/product/pdf/LSB/LSB10434.

Asset Forfeiture and Domestic Terrorism

There are many legal mechanisms for the United States and state and local governments to seize property. In light of recent events, the most relevant of these ways is asset forfeiture as it relates to “domestic terrorism.” Under the Patriot Act, asset forfeiture was extended to “domestic terrorism.”7 The ACLU explains the definition of domestic terrorist: “A person engages in domestic terrorism if they do an act ‘dangerous to human life’ that is a violation of the criminal laws of a state or of the United States, if the act appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping.”8 This definition is broad enough to encompass many groups, and activities of groups such as Greenpeace, Operation Rescue, World Trade Organization (WTO) protestors, and protestors recently at the Capital Protests.

The ACLU further states that, “Section 806 of the Act could result in the civil seizure of their assets without a prior hearing.”9 Section 806 of the Patriot Act amended the civil asset forfeiture statute to authorize the government to seize and forfeit: “all assets foreign or domestic (i) of any individual, entity, or organization engaged in planning or perpetrating any act of domestic or international terrorism against the United States, or their property, and all assets, foreign or domestic, affording any person a source of influence over any such entity or organization or (ii) acquired or maintained by any person with the intent and for the purpose of supporting, planning, conducting, or concealing an act of domestic or international terrorism against the United States, citizens or residents of the United States, or their property or (iii) derived from, involved in, or used or intended to be used to commit an act of domestic or international terrorism against the United States, citizens or residents of the United States, or their property.”10

Once the property is seized, a hearing is conducted and the United States has only to prove by a preponderance of the evidence (more likely than not) that the person was engaged in domestic terrorism.11 This means that the people whose assets have been seized have to get by without those assets until the hearing takes place.

In February of 2021, President Biden stated that “domestic terrorism” was the greatest threat in America and that white supremacists are the “most dangerous people.”12 He is quoted as saying, “That is the greatest threat to terror in America, domestic terror. And so I would make sure that my Justice Department and the civil rights division is focused heavily on those very folks, and I would make sure that we, in fact, focus on how to deal with the rise of white supremacy.”13 You can draw your own conclusions from this.

Conclusion

Suffice it to say that these legal means for confiscating property are not going away any time soon. It is especially important now to understand the government’s power to take property and the limitations on those powers. This often requires a very state-specific analysis. It is also important to understand and be aware of the laws in order to not accidentally become a victim of them.

Footnotes:

1 https://www.fbi.gov/investigate/white-collar-crime/asset-forfeiture.
2 https://trumpwhitehouse.archives.gov/briefings-statements/letter-president-donald-j-trump-emergency-determination-stafford-act/.
3 https://www.nga.org/wp-content/uploads/2020/05/Memorandum-on-Overview-of-State-Actions-to-Commandeer-and-Inventory-Private-Property_4-20_Final.pdf.
4 Id.
5 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.12.20-EO-N-25-20-COVID-19.pdf (see the document for a list of California Statutes authorizing the governor’s actions).
6 A few examples are linked here: https://nj.gov/infobank/eo/056murphy/pdf/EO-113.pdf, target=”_blank” rel=”noopener noreferrer”https://content.govdelivery.com/attachments/OHOOD/2020/03/31/file_attachments/1415857/Ventilator%20Order-033120.pdf, https://www.governor.pa.gov/wp-content/uploads/2020/04/20200408-GOV-Critical-Medical-Resources-Order.pdf
7 https://www.aclu.org/other/how-usa-patriot-act-redefines-domestic-terrorism.
8 Id.
9 Id.
10 Id.
11 Id.
12 https://www.sun-sentinel.com/florida-jewish-journal/fl-jj-biden-white-supremacists-most-dangerous-people-america-20210217-22tlfdrcg5dvvkdaqzmbzu6xde-story.html.
13 Id.