PrintApril 12, 2010
DOE's Search and Seizure
The feds are coming to inspect your home if you want to sell it, according to regulations buried in cap-and-trade legislation and standards decreed by the Secretary of Energy. But there are numerous legal difficulties inherent in DOE "inspections." Here are a few:
First, the regulations purportedly require homeowners to submit to a warrantless search of their property. The result of this inspection ("looking in") of their home would be to condemn real property (fixtures and things attached to the land are real estate in many states) and/or personal property.
There has been a controversy about whether so-called regulatory searches require a warrant. But whatever the state of the law is now, one should consider the truth of the words of the Supreme Court in Camara v. Municipal Court, a case about a warrantless regulatory search:
We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime. ... But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely "peripheral." It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.
The Supreme Court goes on to suggest that there are indeed criminal consequences in many cases involving regulatory searches. But consider the logical consequences of such an argument. If a warrantless regulatory search results in eventual criminal prosecution, then it is prohibited. If that were true, then it would mean that warrantless searches not resulting in dire consequences are permissible. Following such logic, the government's ability to make warrantless searches is commensurate with the unserious consequences resulting from the warrantless search. Thus, the most law-abiding citizens would have the least protection from warrantless searches.
The second legally problematic issue of these regulations involves their attempt to alter property law. There is no federal property law, and there has never been any federal property law. Real and personal property law is exclusively state law. This fact is confirmed daily in federal civil (bankruptcy) and criminal (theft, robbery) courts across the land.
Practically, there can never be any federal property law. Creating and imposing federal property law would mean that existing property rights would have to be altered. If the federal government federalizes property law, then it would necessarily have to take existing property. If it takes existing property, the Fifth Amendment requires payment of just compensation. In our march to true communism, it seems theoretically possible for the federal government to nationalize all property if it could borrow enough money to pay for it. But if the government paid all the current property owners for the property taken, those owners would have the money but no property to buy, since all property would be owned by the state and the state would not have to sell the property to private citizens.
By ordering the replacement of existing and working personal and real property (like electrical appliances and light bulbs), the DOE is condemning the owner's property. When the government condemns property, the Fifth Amendment requires just compensation. This fact has been recognized in years of precedent in non-conforming uses.
Suppose a community with no zoning laws finally adopts one requiring a twenty-foot setback line for structures; that is, buildings must be at least twenty feet back from the street. What about a building constructed ten feet back before the zoning code was adopted? That landowner built the structure relying on the law at that time, which had no such restrictions. The municipality can surely force the landowner to move the building, but the municipality will have to pay because it is taking the landowner's property -- the right to have the property ten feet from the street.
If regulations like the DOE's are enforced and upheld, there appears to be no limit to the federal government's authority to terminate or alter one's property rights. Furthermore, the ability to alter one's property rights then derives from the seller of the product in question. Suppose GM builds a car that is safer than last year's model. hy could the Department of Transportation not require the property (car) owner to retrofit last year's model, or prohibit its sale completely? You can bet that General Electric (and other manufacturers) will start building appliances with planned energy obsolescence.
These are just a few of the legal challenges to the DOE's regulations. Nevertheless, the DOE rules might be implemented, and here's how: In most communities, the local realtor and bar associations get together to draft a form for real estate sales. It is simply a fact that neither the realtors nor the lawyers get paid unless there is a closing, and they do not want any hassles to delay those closings. So what they might do is put a paragraph in the sales agreement in which both parties agree to let federal DOE agents perform a warrantless search and agree that the appliances will conform to the federal regulations or be replaced. Let buyers (and sellers) of property beware -- and be prepared.
