If you want an idea of what a post-apocalyptical United States might look like, the kind folks with the New York State Unified Court System and the New York State Bar Association have presented a preview of how they envision New York operating under such conditions.
The New York State Public Health Legal Manual lays out the plans on how the courts and legal system will operate in New York should the area be devastated by biological or conventional attack. As a preview, if you think the courts have made a joke out of the Fourth Amendment to date, you ain't seen nothing yet.
The privacy expectations involved in an administrative search of a residence are extremely high. See United States v. United States District Court, 407 U.S. 297, 313 (1972) [“physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed”].By contrast, privacy expectations in commercial premises are “particularly attenuated” in industries that are “closely regulated.” New York v. Burger, 482 U.S. 691, 700 (1987). Nevertheless, administrative searches of a home can fall within the “special needs exception” to the requirement of obtaining a warrant pursuant to a showing of probable cause—”where special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” Board of Education v. Earls, 536 U.S. 822, 829 (2002), citing Griffen v. Wisconsin,483 U.S. 868, 873 (1987).
When it comes to allowing the government entre to your house and property, New York has it covered.
In the context of control of contagious diseases or other health hazards, facts supporting the seriousness of the threat and the need for immediate government action can justify a warrantless search. See Camara v. Municipal Court, supra, 387 U.S. at 539 [“nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations”], citing North American Cold Storage v. City of Chicago, 211 U.S. 306 (1908) [seizure of contaminated food]; Jacobson v. Massachusetts, 197 U.S. 11 (1905) [mandatory smallpox vaccination]; Compaignie Francaise v. Louisiana State Board of Health, 186 U.S. 380 (1902) [health quarantine].
The idea is that given an outbreak of an infectious disease, agents of the government should be able to conduct an "administrative search" of your residence. If it's okay in the event of a biological attack, it isn't a giant leap to say it's okay in the event of war on American soil. Is it so hard to imagine the police conducting administrative searches in the name of "national security" in an attempt to round up anyone who disagrees with those in power?
And what if the government decides they need to take your property to "serve the greater good?" Forget about your day in court -- at least until some undetermined time in the future after the threat has passed.
The Fourteenth Amendment prohibits deprivation of property without due process of law. A pre-deprivation hearing is rarely feasible in an administrative search and seizure context where property is seized incidental to a search, especially a warrantless search based upon exigent needs; procedural due process then must be satisfied by a meaningful post-deprivation remedy. See Gilbert v. Horn, 520 U.S. 924, 930 (1997) [“where a State must act quickly or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requisites of the Due Process Clause”]; Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 299-301 (1981) [no prior hearing is necessary when a seizure responds to a situation in which swift government action is necessary to protect the public health and safety]. The availability of judicial actions for damages or replevin should satisfy the post-deprivation remedy requirement (and may do so even in non-emergency situations). See Hudson v. Palmer, 468 U.S. 517 (1984) [common law suit for damages sufficient post-deprivation remedy]; Parratt v. Taylor, 451 U.S. 527, 541 (1981) [same]; Smith v. O’Connor, 901 F. Supp. 644, 647 (S.D.N.Y. 1995) [meaningful post-deprivation hearings in action for damages, negligence, replevin or conversion are sufficient]; Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996) [“An Article 78 proceeding is a perfectly adequate post-deprivation remedy.”].
It's just a damn shame that pesky little 14th Amendment even has to rear its ugly head, ain't it?
After letting us know that whenever the government seizes someone's property, that someone needs to be compensated (without nearly as much profit margin as those with inside information receive when they buy up land cheaply without disclosing the pending government seizure) -- but that whole compensation thing can really tie the government's hands when they're out there doing there best to deprive the population of their constitutional rights and protections. So the good folks up in New York found a solution to that little problem.
It turns out that if your property is seized because the government thinks it's a breeding ground for whatever infectious agent is terrorizing the area, your property hasn't been seized -- because it's not even yours.
These principles, however, do not apply where the seizure of property is to address public health hazards related to the property. There is no deprivation of property rights in that context, because the ownership of property carries with it a limitation that “inhere[s] in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.” Lucas v. South Carolina Coastal Council, supra, 505 U.S. at 1029. All property is held under the implied obligation that the owner’s use of it is not injurious to the community. Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 491-92 (1987). The state is not required to provide compensation for the seizure of property “to abate nuisances that affect the public generally,” Lucas v. South Carolina Coastal Council, supra, 505 U.S. at 1029, or “for the destruction of ‘real and personal property, in cases of actual necessity, to prevent the spreading of a fire’ or to forestall other grave threats to the lives and property of others.” Id. at n.16, citing Bowditch v. Boston, 101 U.S. 16, 18-19 (1880). As the Supreme Court has stated, “[S]ince no individual has a right to use his property so as to create a nuisance or otherwise harm others, the State has not taken anything when it asserts its power to enjoin the nuisance-like activity.” Keystone Bituminous Coal Association v. DeBenedictis, supra, 480 U.S. at 491, n.20. Cf. PHL § 1306(1) [“The expense of suppression or removal of a nuisance or conditions detrimental to health shall be paid by the owner or occupant of the premises . . . .”].
That's right. It's not even your property - despite what the title says and despite the fact the person who sold you the property warranted that the property was his. I don't recall anything in the paperwork when my wife and I bought our house that said there was an implied obligation that our use of the property not injure anyone else. There may very well be a legal obligation should a neighbor file suit because your allowing a heavy metal band to perform at midnight every night infringes upon their quiet enjoyment of their property - but that's a different beast than the government taking your property because of an alleged public health matter.
It would appear that some folks have forgotten that the Bill of Rights was drafted with the specific intent of limiting the power of government to meddle in people's lives. So what if the 14th Amendment requires that a property owner be afforded due process before the government can seize his property -- the government exists to serve us, not the other way around. People are real. The land is real. The state is an artificial creation.
And what plan by the bar would be complete without some provision for how legal proceedings will be carried out? What if, shall we say, someone brought before the court has an infectious disease?
Where the presence of a participant who has a contagious disease occurs, and the court determines that the hearing of the case cannot be postponed, protocols are currently in place for addressing the health threat. Where the disease is transmitted by a blood-borne pathogen, court personnel may wear protective gloves; where the disease is transmitted by an air-borne pathogen, court personnel may wear respirators. This equipment is already available at many courthouses. However, the wearing of respirators by the multiple participants in a courtroom setting would no doubt be disruptive to the proceeding, and courts may have to explore alternatives, such as requiring the infectious person to wear the respirator or isolating an infectious litigant in a separate room with an audio-visual connection to the courtroom. Cf. Illinois v. Allen, 397 U.S. 337, 342-43 (1970) [the right to be present at trial is not violated where a trial judge removed a criminal defendant from the courtroom for disruptive behavior].
Confronting your accusers? Whoever heard of such a ridiculous notion? Let's just toss the poor fool in another room, isolated from his attorney and from the court proceedings themselves. There's no need for him to be able to communicate with his lawyer, there's no need for him to be able to see the folks testifying against him in the flesh.
The New York plan is clear in its goal -- in the event of a disaster, the state shall survive. We don't know about the people, however.