BAPCPA and the Due Process Clause of the US Constitution

22 Jul BAPCPA and the Due Process Clause of the US Constitution

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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Douglas Jacobs is a California bankruptcy attorney and partner in the Chico law firm of Jacobs, Anderson, Potter & Chaplin. Since 1988, Mr. Jacobs has taught Constitutional law and Debtor-Creditor/Bankruptcy law at the Cal Northern School of Law. He has served as Dean of Students since 1994. He is a frequent lecturer on the subject of consumer bankruptcy law, and has spoken at both state and national levels.
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