How are sanctions on individuals consistent with the 5th Amendment?

Question

There is a lot in the news these days about ultra-wealthy Russians being sanctioned, their assets frozen, and their private jets and boats seized. I'm curious about the constitutional justification of this in the United States.

Specifically, how are sanctions against individuals consistent with the protections of the Fifth Amendment, i.e. that you can't be deprived of life, liberty, or property without due process the law?

Shouldn't the government have to first prove something in court in order to seize your property?

I always learned that the Bill of Rights is all about protecting people from abuse by the government. What prevents the executive branch from declaring (maybe along with Congress) that all citizens of the opposing political party are now "sanctioned" and have their assets immediately frozen and potentially seized?

Answer 1

When the power of Congress to exercise its quasi-war powers conflicts with the 5th Amendment takings clause right, and you are an "enemy" in a technical legal sense of the United States as determined by Congress. War powers prevail over the 5th Amendment takings clause.

It is quite analogous to the fact that civil forfeiture of assets used in crimes comes within the police power exception to the 5th Amendment's takings clause.

Essentially, the sanctions are acts under the nation's national security and war powers, comparable in a lot of way to letters of marque and reprisal (which authorize private parties to engage in piracy against an enemy of the United States with compensation drawn from the loot recovered), which are expressly constitutionally authorized, and as regulations of international commerce, rather than being punishments for crimes or torts.

Another comparison would be that the laws of war and the U.S. Constitution do not prohibit U.S. military commanders in the chain of command from the President as Commander-in-Chief from directing that military attacks be directed at particular individuals associated with the enemy and its ability to prosecute the conflict, as opposed to mere innocent civilians immaterial to the enemy's war effort, in order to defeat them in a conflict.

President Biden can, for example, be authorized by Congress to direct his generals to make a foreign leader and all of his cabinet members and generals high priority military targets for the military use of force including deadly force, without individualized due process for those targets.

Essentially, the sanctions represent a legal determination by Congress and the President acting with their military and diplomatic hats on that the individuals sanctioned are alter egos or instrumentalities of the state so deeply tied to the state which are in conflict with (i.e. Russia and Belorussia) that sanctions on them are sanctions on the state with which they are so deeply entwined, rather than being based upon their own personal wrongdoing. In other words, it is basically a Congressionally authorized declaration of war against these individuals by the United States declaring them to be our military enemies, but creating rules of engagement that limit the U.S. to mere economic and immigration oriented means.

While Congressionally authorized sanctions are not done pursuant to a declaration of war against Russia and Belorussia, it is well established that Congress may, consistent with its power to declare war, authorize hostile acts against an enemy or enemies, short of a complete and unregulated declaration of war, basically on the theory that authorization to take the greater act implies the authority to take a lesser act of the same kind.

Many similar sanctions in the past have been sustained in the face of constitutional challenges.

In contrast, a constitutionally prohibited Bill of Attainder, is a declaration that someone is guilty of a preexisting crime based upon a legislative rather than a judicial determination that they did the things that authorize a criminal punishment for those crimes, despite otherwise being a person who is not an enemy of the United States or affiliated with an enemy of the United States in a war-like sense.

Answer 2

Shouldn't the government have to first prove something in court in order to seize your property?

It is not required that there be a court hearing for seizure of property. Governments exercise their power of eminent domain without a hearing on a regular basis. Such a seizure is contestable in court, but there is no requirement that there be a prior hearing. An arrest is also a seizure, but it is not required that there be a trial before arresting a person. What is required is that the seizure "follow the law", which means that there should be an underlying law (as opposed to the arbitrary whim of a person holding power).

The March 8 executive order cites that legal authority, using familiar boilerplate language, in this case saying

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code

There is a separate order on March 11 with the same authority citations; these orders are related to the first (?) order of April 15, 2021 – same citations. This resulted in a set of regulations by the Treasury department which implement the order. It indicates in 31 CFR 587.201 that there is a published list of names, and that there is a process for appealing an allegedly mistaken finding.

What prevents the executive branch from unilaterally declaring is that there is no Congressional authority to ban political opposition: Congressional complicity is definitely required. Congress has indeed delegated authority to the executive branch – that is a power granted to them by the constitution. POTUS may make a declaration which exceeds authority and the courts will strike down the declaration if it does indeed exceed authority (somebody has to challenge it in court). Congress may have unconstitutionally "authorized" the president to undertake an illegal act – again, the courts can strike down the law.

Theoretically, someone could challenge the underlying law, arguing that the law (or specific implementation) does not pass "strict scrutiny". So far, that has not been done. In the hypothetical case of banning political opposition, there is no question that such a law violates the US constitution w.r.t. the free speech clause, and SCOTUS has been extremely protective of that right. So you are right that the order could be issued, but it is inconceivable that it would be enforced.