As a lawyer who sues the federal government, you get used to the completely different sorts of arguments that authorities legal professionals use to justify abuses of particular person rights—sweeping claims of presidency energy, bad-faith procedural obstacles, and extra.
This was a brand new one: The U.S. Division of Justice (DOJ) argued that confiscating $50,000 from a small enterprise didn’t infringe the enterprise’ proper to personal property as a result of cash will not be property.
“Cash will not be essentially ‘property’ for constitutional functions,” the federal government’s transient declared—placing the very thought of property in sq. quotes. Studying at my desk, I virtually fell out of my chair.
The DOJ gave three rationales for the argument, all packed right into a doorstopper of a footnote: (1) the federal government creates cash, so you possibly can’t personal it; (2) the federal government can tax your cash, so you do not personal it; and (3) the Structure permits the federal government to spend cash for the “basic welfare.”
If a libertarian was requested to put in writing a satire of a authorities lawyer’s transient, that is what they may give you. However right here it was, in black and white.
Whose cash, particularly, was the federal government saying wasn’t property? That of Chuck Saine, the proprietor of C.S. Garden & Landscaping, a small landscaping enterprise outdoors Annapolis, Maryland, which he has operated for over 40 years.
Saine grew to become a consumer of the Institute for Justice (I.J.), a public curiosity regulation agency, when the federal authorities sought to impose over $50,000 in liability on his enterprise by means of a “trial” held deep contained in the bowls of a federal administrative company. At mentioned trial, each the prosecutor and the decide have been employed by the identical federal company.
I.J. sued, arguing that earlier than the federal government can impose that form of legal responsibility, it has to offer an actual trial earlier than an actual decide and jury. The specifics of what the federal government claims Saine did fallacious (briefly: arcane labor regulation) are irrelevant. If the federal government desires to confiscate over $50,000 from your small business, you should have the possibility to argue your protection to an neutral decide and jury—not an company bureaucrat.
Now, the DOJ argued that Saine has no proper to an actual decide and jury as a result of the federal government was solely attempting to take his cash, not his property. They claimed that fiat foreign money is a authorized fiction that the federal government can as simply destroy as create. Lest anybody miss the implicit connection to the historical past of the gold customary, DOJ’s footnote prominently cited the Authorized Tender Circumstances—the place the Supreme Court docket upheld legal guidelines forcing individuals to just accept paper foreign money, somewhat than gold and silver, as fee for money owed.
This was an argument for taking Saine’s $50,000 and not using a trial earlier than an actual decide and jury, however the identical argument could possibly be used to justify all method of mischief. In case your cash will not be your property, what’s to cease the federal government from simply seizing all of it tomorrow—for any purpose it offers?
Earlier than you run out and commerce your USD for meme cash, let me reassure you: DOJ’s argument is fallacious. The Due Course of Clause applies to “life, liberty, or property,” and the Supreme Court docket has repeatedly utilized that Clause to cash. It follows that, since cash is neither life nor liberty, it have to be property.
To make sure, DOJ’s arguments have drive as a philosophical critique of presidency, taxation, and the financial system. They could additionally spotlight legit causes to carry a part of your wealth in gold or (for some) cryptocurrency. However “for constitutional functions,” to borrow a phrase from the DOJ, the arguments are a flop.
A federal courtroom will quickly determine whether or not to uphold Saine’s proper to a trial earlier than an neutral decide and jury. Hopefully, the courtroom will agree: Cash is property, and an company bureaucrat will not be an neutral decide.
