Fifth Amendment: Digital Due Process, Property, and Compelled Access

Automated government is still government

Due process does not become optional because a model, rules engine, vendor platform, or scoring system supplies the recommendation. If an automated system helps deny benefits, flag fraud, suspend a license, trigger enforcement, recommend child-welfare intervention, or shape immigration or criminal consequences, the person affected needs to know enough to challenge the decision.

The platform should use current federal AI governance as a floor, not a ceiling. OMB's 2025 AI memoranda (M-25-21, M-25-22) push agencies toward faster AI adoption and procurement, and they keep a general risk-management architecture: testing, monitoring, and vendor-risk review. They also dropped several Biden-era rights-specific practices for "rights-impacting" AI, including required equity and algorithmic-discrimination impact assessments, notice to people affected by an automated decision, and a mechanism to opt out of one. That drop is exactly why a statutory floor matters here: the due-process rule should be stronger where the deprivation is stronger, and current federal guidance no longer supplies that scaling on its own.

Compelled access remains unsettled

Courts are split over compelled biometric unlocking. The Ninth Circuit held in 2024 that compelling a thumbprint unlock was not testimonial on the facts before it. The D.C. Circuit held in 2025 that compelled fingerprint unlocking violated the Fifth Amendment. The Supreme Court has not resolved that conflict.

That uncertainty is not a reason to let agencies improvise. A modern rule should prohibit compelling a person to disclose a password, provide a passphrase, select the right finger, look into a camera, or otherwise authenticate access to a device or account when the act itself communicates control, knowledge, or access. If the government can obtain data through a warrant, independent technical means, or immunity that preserves the privilege, it can use those tools. It should not force the target to become the key.

Forfeiture needs process before revenue

Civil forfeiture can serve legitimate public purposes when it takes proceeds of crime and instrumentalities of serious wrongdoing. It also creates an obvious conflict when agencies benefit financially from property they seize. Culley held that due process requires a timely forfeiture hearing but does not require a separate preliminary hearing as a constitutional matter. That leaves room for Congress and states to do better by statute.

The party should support statutory preliminary retention hearings, short deadlines, higher burdens for continued retention, innocent-owner protections, counsel access when losing the property threatens livelihood or housing, and public reporting on forfeiture revenue and equitable sharing. A constitutional minimum is not the party's policy maximum.

Takings doctrine has moved within limits

Tyler held that government cannot keep surplus equity from a tax sale above what the owner owed. Pung narrowed that protection in 2026 by fixing the compensation baseline at the price a fairly conducted auction actually produced rather than the property's fair-market value, even where the two diverge sharply: the Pung family's home, assessed at $194,400, sold at auction for $76,008 against a $2,241.93 tax debt. Commentators across the ideological spectrum read that gap as turning Tyler's surplus-proceeds protection into a thinner floor than it first appeared, since a depressed auction price can itself function as a windfall mechanism for the foreclosing government even while nominally returning the surplus. Justice Thomas's separate opinion made the point directly: under a fair-market-value baseline, he wrote, the county's retention here was likely unconstitutional. Sheetz confirmed that legislatively imposed permit conditions are not exempt from takings scrutiny simply because they came from a legislature rather than an administrator.

The correct lesson is precision. Government can collect taxes, enforce fees, impose permit conditions, and regulate property. It cannot turn collection or permitting into a hidden revenue mechanism disconnected from what is owed or from the public burden caused. Because Pung leaves the auction price itself unexamined, the party's proposal goes further than returning the sale proceeds: it requires an independent appraisal or a minimum bid before the auction runs, so the baseline used to calculate the surplus is not the depressed number a fire-sale can produce.