BAPCPA and the Due Process Clause of the US Constitution
By Douglas Jacobs, California Bankruptcy Attorney on Jul 22, 2007 in General Bankruptcy Information
In earlier posts, I have discussed general issues of the constitutionality of BAPCPA (the new bankruptcy law), and the US Constitution, and the Free Speech clause of the First Amendment specifically. Several issues also arise concerning Due Process rights of individuals and this law.
The Constitution protects us from unwarranted limitations of our Fundamental rights under the 5th Amendment and the 14th Amendment. Thus, when reviewing the limitations placed on bankruptcy by BAPCPA, consider if such limits affect a fundamental right.
One obvious such right is the right to travel. Held fundamental many times by the Supreme Court, this right is probably best described as prohibiting (or limiting) a state’s right to prefer its citizens over new-comers to the state. Thus, requiring that someone live in the state for 6 months before being eligible to receive basic necessities is generally considered Unconstitutional.
Under BAPCPA, however, someone that has lived in a state for less than 2 years isn’t entitled to the same exemptions in a bankruptcy as someone who has been in that state for more than 2 years. There are numerous other restrictions based on residency concerning homestead exemptions. These provisions, in addition, to raising due process concerns, also raise Constitutional arguments under the Equal Protection and Privileges and Immunities clauses of the Constitution.
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