It did not go so well when President Biden stepped to the podium Thursday to make the case for the increasingly aggressive policy of seizing assets of Russia and Russians. The president is being widely mocked for struggling to say the word “kleptocracy.” That is not what bothers us. What we’re concerned about is his blitheness in respect of these staggering seizures of property.Nor are we the only ones. It seems that an odd combination of characters from across the political spectrum is beginning to raise civil liberties questions about the seizure of assets against Russians connected to the Kremlin. As the war between Ukraine and Russia extends in time and widens in territory, the government’s seizure of everything from boats to bank accounts is emerging as a front line of politics and policy.All may be fair in love and war, but constitutional? The administration’s “Asset Seizure for Ukraine Reconstruction Act” aims to “streamline the process for seizure of oligarch assets” and “expand the assets subject to seizure.” Plus, make it “unlawful for any person to knowingly or intentionally possess proceeds directly obtained from corrupt dealings with the Russian government.” Due process is unaddressed.The bill’s language is certainly expansive. It empowers the president to “take all constitutional steps” to “confiscate any property or accounts” over $5 million if those assets are within American jurisdiction and held by someone subject to sanctions and “whose wealth, according to credible information, is derived in part through corruption linked to or political support” of the regime of President Putin.Yet what about the Constitution? Law professor Paul Stephan writes in Lawfare that “as a matter of constitutional law, the government’s taking of property may proceed only on the basis of due process of law.” Even if that taking is rubber stamped by Congress, judges must still square that legislation with the Constitution’s strictures. Where are the House leaders marking this point?The asset seizure law, the initial step of a larger legislative push, passed the House yesterday by a vote of 417 to eight. Among those opposed were the strange bedfellows of Madison Cawthorn, Marjorie Taylor Greene, Rashida Tlaib, Ilhan Omar, and Alexandria Ocasio-Cortez. AOC tweeted that the strategy was a “risky precedent” because it ostensibly empowered the president to “violate the 4th Amd & seize private property.” The bill is as of yet nonbinding. Our columnist Ira Stoll decried the seizure of Russian assets as “a broader offensive against property rights” and counseled that “seizing the property of Russian citizens may seem like a case of ‘turnabout is fair play,’ but it’s really a case of ‘two wrongs don’t make a right.’” Mr. Biden is asking Congress for greater power, and power once grasped is rarely freely returned or abjured.Ms. Ocasio-Cortez homes in on the Fourth Amendment’s prohibition on “unreasonable searches and seizures.” Mr. Stoll is drawn to the Fifth Amendment’s promise that “private property” shan’t “be taken for public use, without just compensation.” Federal courts have ruled that due process protections enshrined in both the Fourth and Fifth Amendments extend to “all persons.”It’s not our purpose here to argue for a soft line on Russia. We’ve read Justice Brett Kavanaugh’s majority opinion in US.AID v. Open Society to the effect that “foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution.” Justice Robert Jackson once dismissed the “extraterritorial application of organic law.” Here, though, the assets are under American jurisdiction. It is our purpose to mark the importance of due process, even in war, and even for those affiliated with enemy combatants. President Biden’s project threatens to erode America’s bedrock principles of limited government and property rights. Handle with care, we say. War, as Milton Friedman famously said, is a friend of the state — meaning, a danger to liberty at home. First it’s an oligarch’s yacht, and then it’s your own canoe.
