New York Executive Law § 63(12) Felonious?

 

In challenging the constitutionality of New York Executive Law § 63(12), several aspects of substantive due process should be implicated.

Privacy Rights: If the law infringes upon individuals' fundamental right to privacy without a compelling government interest and lacks narrow tailoring, it conceivably raises substantive due process concerns.

For instance, if it enables the Attorney General to target individuals or businesses without adequate justification, privacy rights are at risk.

Property Rights: Substantive due process safeguards property rights by demanding that government actions affecting property be rationally related to a legitimate government interest. If the law permits the Attorney General to pursue injunctions or remedies against individuals or businesses without due justification, it might infringe upon property rights and thus be subject to challenge.

Liberty Interests: Substantive due process protects against arbitrary or unreasonable government interference with individual liberty interests. If the law excessively restricts individuals' lawful business activities or encroaches upon their liberty without sufficient justification, it conceivably faces challenges on substantive due process grounds.

Overbreadth and Vagueness: Substantive due process mandates that laws be clear and narrowly tailored to their intended purposes. Should New York Executive Law § 63(12) contain overly vague or broad language, or if it criminalizes constitutionally protected conduct to a significant degree, substantive due process concerns conceivably arise. If the language of the law is overly vague or broad, it could lead to arbitrary or discriminatory enforcement and thus violate the principles of due process. Additionally, if the law sweeps too broadly and criminalizes a substantial amount of constitutionally protected conduct, it might be considered overbroad.

Additionally, concerning excessive fines, laws or actions imposing penalties disproportionate to the offence committed can be deemed unconstitutional under the Eighth Amendment's prohibition against excessive fines. 

Cases such as United States v. Bajakajian (1998), Browning-Ferris Industries of Vt. v. Kelco Disposal, Inc. (1989), Austin v. United States (1993), and Timbs v. Indiana (2019) illustrate how the Supreme Court has addressed such issues, underscoring the principle that fines must not be grossly disproportionate to the offence and that property cannot be confiscated without due process of law.

In addition, the New York Executive Law § 63(12) could be considered unconstitutional depending on various factors, including how it is applied and interpreted in practice, and whether it conflicts with constitutional provisions or principles. Here are some potential areas where constitutional concerns might arise:

Due Process: The law allows the Attorney General to seek injunctions and other remedies against individuals or businesses engaging in fraudulent or illegal acts. In applying such remedies, it's essential to ensure that affected parties receive due process rights, including notice and an opportunity to be heard.

First Amendment: If the law restricts speech or expression in a manner that is not narrowly tailored to serve a compelling state interest, it could raise First Amendment concerns. For example, if the law is used to target protected speech or political expression, it might be subject to challenge on First Amendment grounds.

Equal Protection: The law must be applied in a manner that does not discriminate against individuals or groups based on improper classifications such as race, gender, or religion. Unequal treatment in enforcing the law could potentially violate the Equal Protection Clause of the Fourteenth Amendment.

Separation of Powers: Depending on how the law interacts with the powers of other branches of government, particularly the judiciary, concerns about separation of powers might arise. If the law grants the Attorney General excessive discretion or authority without sufficient oversight, it could raise separation of powers issues.

State Constitutional Concerns: It's also possible that the law could be challenged under the New York State Constitution, which may provide additional protections or impose different requirements compared to the U.S. Constitution.

The "general principle of proportionality" is a legal doctrine often applied in various contexts, including constitutional law and international law. It essentially states that any government action or restriction on individual rights must be proportionate to the legitimate aim it seeks to achieve. 

In other words, the means used by the government should not exceed what is necessary to accomplish its objectives and was this case brought against the former US President by a political hatchet job by one political party member seeking a higher public office?