Creating A Constitutional Violation Out Of Thin Air

Rabbit out of a hatConservatives may have moved quickly to dissociate themselves from Representative Joe Barton's apology to BP, but many on the right still believe that the establishment of a $20 billion escrow fund violated the legal rights of the company. A frequent claim is that the Obama administration has violated BP's due process rights. Appearing on ABC's This Week, George Will stated the creation of the escrow fund amounted to a confiscation of assets that circumvents due process. Former Washington Times writer Robert Stacey McCain argued in his blog that Rep. Barton was rightly concerned about due process when he apologized to BP. Michael Barone in National Review Online quipped that, "the Constitution does not command 'no person ... shall .... be deprived of life, liberty, or property, without due process of law; except by the decision of a person as wise and capable as Kenneth Feinberg." The Framers stopped at "due process of law." It is to be expected that conservatives care less about the decimated lives along the Gulf Coast than they do about a multinational corporation losing $20 billion over several years, even when its cash flow for this year alone will reach $30 billion, according its own estimates. What is a slightly more surprising is that they would completely misconstrue a fundamental legal concept in the process.

No Violation of Due Process

These pundits are referring to the due process mentioned in the Fifth Amendment because they believe this is a deprivation of a private corporation's property by the federal government. Thus, BP should have been afforded the procedural due process guarantees of adequate notice, a hearing and a neutral judge. Barone complains, "what we have is government transferring property from one party, an admittedly unattractive one, to others." This would be a due process violation but for the existence of one critical fact: BP established this fund voluntarily. If the $20 billion was set aside against BP's wishes, then would be a basis for a due process violation argument. So what we actually have is a party voluntarily transferring its wealth to others, with the assistance of the government. Without any opposition from BP, there is no taking, no seizure, and no deprivation that necessitates the procedural due process guarantees of the Fifth Amendment. All the evidence clearly leads to the conclusion that BP established the escrow fund voluntarily.

Faking Offense

After meeting with President Obama, BP chairman Carl-Henric Svanberg apologized for the devastation caused by the oil spill and stated that, "this agreement is a very significant step in clarifying and confirming our commitment to meet our obligations." If BP did not want to establish this fund, it would have publicly protested and promptly sued the government for the kind of due process violation Will, McCain, and Barone imagine is taking place. Instead, the executives stood before dozens of reporters and professed their acceptance of the escrow fund. There are many rational reasons why BP would want to set up this fund at Obama's behest. The company may want to appear compassionate to the American public, or discourage the administration from blocking its acquisition of future drilling rights. Regardless of the reason, BP acted of its own volition and Obama's skillful application of political pressure should not be misconstrued into a violation of the Constitution.


With a record 760+ regulatory policy violations. Thats 760+ violations of law for profit, 760+ criminal acts with profit being the motivation. Sanctioning any enterprise that operates outside the boundaries of the laws because government contracts, personal investments or a need & demand for the product/service is abhorrent! Millions in profit and a slap on the wrist with a inconsequential minimal fine that is written off as a minor expense in the end? Break the law and you lose all the fruit of that violation in addition to a more punitive fine, then you'll start to see more attention being paid to the details instead of the measured weighing of fine vs profit.... Take the profit out of crime through RICO laws as it is evident that this particular enterprise is an organized criminal operation motivated by profits.

I agree with you. BP voluntarilary transferred the $20B to the US. Then why did the gov't make it sound like they pushed BP into the sitiuation. In fact BP has said that they were going to pay for everything, why then does the gov't have to take credit for getting them to do something they are doing on their own. Let's all take the credit, what a joke.

Voluntarily, yes. I think we were lucky this is a British/European company. At least they have some sense of fair play. It it was a US company like Exxon they would have to be dragged kicking and screaming through the courts before they parted with a dollar.

Fair play-is that a sick joke? It sounds like you buy into that whole "Europeans are superior" myth. Europeans are no better, and neither are their greed motivated corporations. That much should be obvious to an unbiased observer of this BP sponsored nightmare. They've lied through their teeth before and ever since the disaster they created, dumped toxic chemicals that made the problem worse in the hopes of hiding the magnitude of it..the list of ugly deeds goes on. The crimes these pieces of excrement masquerading as humans continue to perpetrate are hideous beyond measure. They ought to lose more than money over it. Don't forget that Europe had the biggest empires in the world before we Americans beat them at their own game. There are plenty of powerful scumbags to go around-as well as plenty more good people whose will rarely prevails. Nobody is better by virtue of their country or continent-that belief is pure jingoism, if not outright bigotry. Maybe it's time European superiority believers reviewed the history of that bloody continent, not to mention the behavior of these BP Earth destroyers and liars with their "sense of fair play". The only reason they're giving a dime is that they see the writing on the wall-they know they're neck deep in it, and if the political will is there, we can strip them of everything, and ought to. They are hoping to avoid that. Anyone perpetrating such a nightmare against the planet ought to lose the right to ever do business again, as well as all their ill gotten gains, and be on trial for their lives. Anything less is spitting in the faces of our unfortunate descendants. If you think I'm mad; of course I am-when someone attacks my mother, I'm ready to rip them a new one. A tepid response isn't what's called for. For the record, Exxon and the rest are all the same in my book, and all deserve the same fate. No worse, and no better-no illusions about it.

So what were the thousands, who were out of work because of the oil spill supposed to do without this fund? It is easy to speak when you are not in that situation. The fund is a no-brainer.

Has the legality been confirmed as valid or invalid? What deals have been done behind closed doors

I think it's great that BP owned up to their responsibility and voluntarily gave the $20B. I also agree that because the payment is voluntary their due process rights have not been violated. What disturbs me is the president stating the money would go into an escrow account handled by a neutral third party when in fact former pay czar Kenneth Feinberg will control the money. His close ties to the administration definitely do NOT make him neutral... or a third party! I just hope for the sake of the fisherman and small business people of the gulf this $20B doesn't turn into another "stimulus"/slush fund debacle.

Do we need a Referendum For A New Democracy? Are you concerned about the future of democracy? Do you feel democracy is under attack by extreme greed in countries around the world? Are you sick and tired of: living in fear, corporate greed, growing police state, government for the rich, working more but having less? Can we use both elections and random selection (in the way we select government officials) to rid democracy of undue influence by extreme wealth and wealth-dominated mass media campaigns? The world's first democracy (Athenian democracy, 600 B.C.) used both elections and random selection. Even Aristotle (the cofounder of Western thought) promoted the use random selection as the best way to protect democracy. The idea of randomly selecting (after screening) juries remains from Athenian democracy, but not randomly selecting (after screening) government officials. Why is it used only for individual justice and not also for social justice? Who wins from that? ...the extremely wealthy? What is the best way to combine elections and random selection to protect democracy in today's world? Can we use elections as the way to screen candidates, and random selection as the way to do the final selection? Who wins from that? ...the people?

Has anyone confirmed the process for the release of funds to those affected by the spill?

The whole reason BP set up this fund is to try to keep itself from being put on trial. The fact is they didn't have to do anything like that if they didn't want to. However, That doesn't mean that because they took this step, doesn't mean they shouldn't be put on trial for criminal negligence. The fact that they are compensating gulf coast businesses is only appropriate and should be taken into account..