Topic: Law and Civil Liberties

Seize First, Question Later: The Institute for Justice’s New Report on the IRS’ Abusive Civil Forfeiture Regime

Considering the growing controversy over the abuse of civil asset forfeiture at the federal and state levels, the Institute for Justice’s newly released report on the IRS’ questionable use of the practice is perfectly timed.

An excerpt from the executive summary:

Federal civil forfeiture laws give the Internal Revenue Service the power to clean out bank accounts without charging their owners with any crime. Making matters worse, the IRS considers a series of cash deposits or withdrawals below $10,000 enough evidence of “structuring” to take the money, without any other evidence of wrongdoing. Structuring—depositing or withdrawing smaller amounts to evade a federal law that requires banks to report transactions larger than $10,000 to the federal government—is illegal, but more importantly, structured funds are also subject to civil forfeiture.

Civil forfeiture is the government’s power to take property suspected of involvement in a crime. Unlike criminal forfeiture, no one needs to be convicted of—or even a charged with—a crime for the government to take the property. Lax civil forfeiture standards enable the IRS to “seize first and ask questions later,” taking money without serious investigation and forcing owners into a long and difficult legal battle to try to stop the forfeiture. Any money forfeited is then used to fund further law enforcement efforts, giving agencies like the IRS an incentive to seize.

Data provided by the IRS indicate that its civil forfeiture activities for suspected structuring are large and growing…

For the uninitiated, under the Bank Secrecy Act of 1970, financial institutions are required to report deposits of more than $10,000 to the federal government.  The law also makes it illegal to “structure” deposits in such a way as to avoid that reporting requirement.  Under the IRS’ conception of the law, “structuring” may be nothing more than making several sub-$10,000 deposits, without any further suspicion of particular wrongdoing.  For obvious reasons, many small businesses and individuals can find themselves on the wrong side of this law without any criminal intent.

When the structuring law is combined with the incredibly low burdens required for the federal government to seize assets through civil forfeiture, the potential for abuse is self-evident.  While the lack of criminal intent may protect against criminal structuring charges, it is no barrier to the government’s overbroad power to initiate civil proceedings against the money itself.

IJ’s report, authored by Dick M. Carpenter II and Larry Salzman, goes in depth to reveal the history and unbelievable breadth of the IRS’ civil forfeiture regime, the perverse incentives it creates for government agencies, and the individual livelihoods it threatens and destroys.  IJ makes the case for much stronger protections for private property rights (including the outright abolition of civil forfeiture as a government power).

Be sure to check out the full report, as well as the Institute for Justice’s other work on asset forfeiture and private property here.

For more of Cato’s recent work on civil forfeiture, see Roger Pilon’s recent National Interest  article here, my blog post here, and a recent podcast here.

 

To Vaccinate, or Not to Vaccinate: That Is the Question

With Gov. Chris Christie and Sen. Rand Paul now having weighed in on the growing compulsory vaccination debate—Paul telling a radio host yesterday that most vaccines “ought to be voluntary”—the question arises whether there’s a “libertarian” position on the question. Rightly suspicious of government compulsion, a libertarian’s first instinct is to say that this is a question for individual parents to decide. But second thoughts suggest that the matter is more complicated. After all, it isn’t simply a matter of assessing the risk to one’s own child, about which the state is not entirely disinterested—enforceable parental obligations to one’s children come with becoming a parent. It’s also a question of how much risk one can impose, even through one’s children, on others. And on the matter of risk, the rights analyses that easily sort out so many other human conflicts start to break down—or, more precisely, require turning to values as well, about which reasonable people can have reasonable differences. Some people are risk averse, after all, others are risk takers, and between the two there is no principled line, which is why we often have to turn to public solutions through public line-drawing.

Fortunately, there comes just this morning a splendid essay by NYU Prof. and Cato Adjunct Scholar Richard Epstein that sorts out the competing claims on this question in a principled and fairly detailed way. To those reluctant to see any government role, for example, he says:

Even in a free state, quarantines are the only reliable remedy to protect the health of the public at large from the spread of disease. It is sheer fantasy to think that individuals made ill could bring private lawsuits for damages against the parties that infected them, or that persons exposed to imminent risk could obtain injunctive relief against the scores of persons who threaten to transmit disease. The transmission of disease involves hidden and complex interconnections between persons that could not be detected in litigation, even assuming that it could be brought in time, which it cannot. Public oversight should be able to achieve the desired end at a far lower cost.

Yet he adds: “That said, the categorical defense of compulsory vaccination statutes raises serious questions of its own,” which he goes on to illuminate. Read the whole piece. It brings reason to issues too often fraught with and driven by emotion, understandably when it’s our children who are at risk.

Using Racial Gerrymandering to Combat Racial Gerrymandering

I’ve previously written about the way that the existing case law regarding voting-rights protections requires the very kind of odious racialization of politics that Congress wrote the Voting Rights Act to forbid.  Specifically, courts have read the law in a way that essentially requires racial gerrymandering, which also racializes political differences between the parties. (The Supreme Court this term is considering one of the bizarre consequences of this line of precedent.)

Well, a couple of weeks ago an interesting lawsuit was filed by the Equal Voting Rights Institute (a Texas nonprofit run by Dan Morenoff, who is a friend of mine from law school) that illustrates where this jurisprudence leads when paired with the most basic notions of equal protection.

EVRI has brought exactly the same kind of suit long used by traditional voting-rights activists but this time on behalf of non-Hispanic-white voters in Dallas – where they constitute a racial minority that has seen its “preferred candidate” (a term of art in this arcane legal field) win only two county-wide races contested by the major parties over four election cycles, which is 2 out of about 150 elections. EVRI asks the courts to apply the same measuring sticks they’ve used for decades to require the drawing of districts for other groups in the new context of a “minority-majority” jurisdiction whose governing coalition still votes on ethnic lines and uses its political power to strip an out-of-step race of any chance to fairly participate in elections.

It’s hard to imagine a case where equal protection provisions are more starkly implicated: either the VRA protects the out-voted white voters of Dallas exactly as it protects the outvoted African American and Hispanic voters of Texas, or the Voting Rights Act – as construed by the courts – provides unequal protections to different races in flagrant violation of the Fourteenth Amendment.

But this means that a constitutional reading of the VRA would broaden the scope of its case law (and the odious racial gerrymandering it requires) to apply to every minority-majority jurisdiction in the country. In fact, as America becomes more diverse, it makes sense that judges would need to look at actual demographic facts on the ground to determine who needs their protection from racial disenfranchisement. That development may wake up the communities that have long viewed the Voting Rights Act as their proprietary cudgel to the need to return to the original understanding of the legislation: to police against actual instances of discrimination rather than maintain some sort of statistical parity akin to the “disparate impact” theories running rampant in other contexts. 

In other words, and to paraphrase Chief Justice John Roberts’s famous dictum, the way to stop racialized interpretations of the Voting Rights Act is to highlight the way that race-based decision-making has been used to interpret parts of that law. It’s a strange world where a classical liberal is required to root for more racially informed lawmaking in order to recover the core ban on racist voting laws that made the VRA the cornerstone of civil rights movement. But that is the world we live in.

For more on the case of Harding v. County of Dallas, Texas, see the complaint and EVRI’s press release.

Loretta Lynch’s Worrisome Answer on Civil Asset Forfeiture

Referring to the federal government’s forfeiture regime as “an important tool” in fighting crime, attorney general nominee Loretta Lynch staunchly defended the concept of civil asset forfeiture during the first day of her confirmation hearings.

After Sen. Mike Lee (R-UT) questioned the “fundamental fairness” of Americans having their property taken by the government without any proof (or often even suspicion) of criminal wrongdoing, Lynch asserted that there are “safeguards at every step of the process” to protect innocent people, “certainly implemented by [her] office … as well as an opportunity to be heard.”

Even setting aside the litany of federal civil asset forfeiture abuses that have come to light recently across the country, Lynch’s reference to her own office’s handling of civil forfeiture is particularly concerning.

Lynch is currently the U.S. attorney for the Eastern District of New York, and her office, despite its safeguards, is responsible for one of the more publicized and questionable uses of the asset forfeiture program.  In May of 2012 the Hirsch brothers, joint owners of Bi-County Distributors in Long Island, had their entire bank account drained by the Internal Revenue Service working in conjunction with Lynch’s office. Many of Bi-County’s customers paid in cash, and when the brothers made several deposits under $10,000, federal agents accused them of “structuring” their deposits in order to avoid the reporting requirements of the Bank Secrecy Act. Without so much as a criminal charge, the federal government emptied the account, totaling $446,651.11.

For more than two years, and in defiance of the 60-day deadline for the initiation of proceedings included in the Civil Asset Forfeiture Reform Act of 2000, Lynch’s office simply sat on the money while the Hirsch brothers survived off the goodwill their business had engendered with its vendors over the decades.

Employers Aren’t Mind-Readers and Shouldn’t Be Forced to Pry Into Employees’ Religious Beliefs

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws against employment discrimination. Along with enforcing these laws—most notably, Title VII of the Civil Rights Act, which outlaws discrimination on the basis of race, color, religion, sex, or national origin—the EEOC tells employers how not to discriminate. For example, the EEOC’s Best Practices for Eradicating Religious Discrimination in the Workplace instructs that an employer should “avoid assumptions or stereotypes about what constitutes a religious belief” and that managers “should be trained not to engage in stereotyping based on religious dress and grooming practices.” 

It’s passing strange, then, that the government is now arguing before the Supreme Court not only that employers can do these things, but that they must, or face liability under Title VII, in the context of reasonable accommodations that companies have to make for religious practice. Discerning when such accommodations are necessary can be difficult because people practice religion differently—and often in their own personal, non-obvious way. 

Title VII has thus traditionally been understood to leave it to the employee to determine when a company policy conflicts with his or her religious practice and then to request an accommodation. This interpretation leaves employers free to pursue neutral policies up to the point that they have actual knowledge of such a conflict. 

In the last several years, however, the EEOC has apparently taken the position that employers must pry into their employees’ religious practices whenever they have an inkling of suspicion that an accommodation may be needed. Abercrombie & Fitch is one company that has found out just how impossible a situation this puts employers into. When Abercrombie decided not to hire Samantha Elauf as a sales associate based on her violation of the company’s “Look Policy”—a branding guide that, among other things, prohibits the wearing of clothing generally not sold by the store, like Elauf’s black headscarf—the company found itself on the wrong end of a government lawsuit. 

A federal district court ruled for the EEOC even though Elauf never informed them that she would need a religious accommodation.  The U.S. Court of Appeals for the Tenth Circuit reversed, holding that an employer must actually know about a religious practice before it can be held liable for discriminating on that basis. The Supreme Court took the case at the EEOC’s request and Cato has now filed a brief in support of Abercrombie. 

We argue that employers must have actual knowledge of the potential need for a religious accommodation before they can be held liable for violating Title VII because the EEOC hasn’t offered any coherent alternative and because employers already know how to use this tried-and-true actual-knowledge standard. In addition, the burden of identifying the need for accommodations has to be on the employee because, after all, it’s their religion, and thus they are in a significantly better position to identify conflicts than employers—who aren’t mind-readers and shouldn’t have to rely on crude stereotypes or pry into employees’ personal lives. 

An opposite rule would create an awkward and uncomfortable scenario all-around. The EEOC’s position is short-sighted; if the agency somehow prevails, it will have done what federal agencies do best: turn minimal burdens for some people into heavy burdens for everyone.

The Supreme Court will hear argument in EEOC v. Abercrombie & Fitch Stores, Inc. on February 25.

Taxing Us to Spy on Us

Reading some Frederic Bastiat last night, I circled his observation that the government takes advantage of citizen passivity to increase its power, often by promising to “cure all the ills of mankind.” The government initiates “in the guise of actual services, what are nothing but restrictions; thereafter the nation pays, not for being served, but for being disserved.”

The Wall Street Journal reports that we pay our hard-earned tax dollars for the federal government to spy on us on the highways. Americans might think they are footing the $29 billion annual bill for the Department of Justice to secure our freedoms, but instead the department is abusing those freedoms:

The Justice Department has been building a national database to track in real time the movement of vehicles around the U.S., a secret domestic intelligence-gathering program that scans and stores hundreds of millions of records about motorists, according to current and former officials and government documents.

The database raises new questions about privacy and the scope of government surveillance. The existence of the program and its expansion were described in interviews with current and former government officials, and in documents obtained by the American Civil Liberties Union through a Freedom of Information Act request and reviewed by the Wall Street Journal. It is unclear if any court oversees or approves the intelligence-gathering.

The documents show that the DEA also uses license-plate readers operated by state, local and federal law-enforcement agencies to feed into its own network and create a far-reaching, constantly updating database of electronic eyes scanning traffic on the roads to steer police toward suspects.

“Any database that collects detailed location information about Americans not suspected of crimes raises very serious privacy questions,’’ said Jay Stanley, a senior policy analyst at the ACLU. “It’s unconscionable that technology with such far-reaching potential would be deployed in such secrecy. People might disagree about exactly how we should use such powerful surveillance technologies, but it should be democratically decided, it shouldn’t be done in secret.’’

The disclosure of the DEA’s license-plate reader database comes on the heels of other revelations in recent months about the Justice Department, as well as the agencies it runs, gathering data about innocent Americans as it searches for criminals. In November, the Wall Street Journal reported that the U.S. Marshals Service flies planes carrying devices that mimic cellphone towers in order to scan the identifying information of Americans’ phones as it searches for criminal suspects and fugitives.

Why do government officials try to keep such programs secret? I suspect it’s because they know they are disserving us by undermining our liberties. As for members of Congress, they often do little more than say government spying on us “raises concerns,” but the license plate program is a good opportunity for them to stand up to the executive branch and put a stop to it.

Notes:

The Journal’s report is not an entirely new revelation. In this essay, I mentioned that the Department of Homeland Security also has a license plate spying program.

Walter Olson weighs-in here.

Even the Benefit of the Doubt Won’t Save EPA’s Mercury Rule

Challenging an agency’s assessment of scientific research in court is typically seen as a fool’s errand. The courts may keep the regulatory state on a close leash where matters of constitutional law are concerned, and will give challenges regarding the proper interpretation of statutes a fair hearing before (usually) deferring to the government’s view. But an agency has to go seriously off the rails before the courts will second-guess its assessment of the scientific record underlying a regulation.

That’s what makes EPA’s super-expensive Mercury and Air Toxics Standards (MATS) rule so interesting: the agency’s own assessment of the scientific research shows there was no good reason to regulate in the first place. The Supreme Court is now reviewing EPA’s decision to plow ahead regardless, irrespective of the costs of doing so.

The Cato Institute’s amicus brief in Michigan v. EPA unpacks EPA’s own scientific assessment to show that regulation certainly is not (as the statute requires) “appropriate and necessary.” 

Power plants emit trace amounts of mercury, and mercury poses a risk to human neurological development when pregnant women consume fish tainted by it. But, as EPA has explained, mercury deposition in the United States “is generally dominated by sources other than U.S. [power plants].” In fact, the agency’s figures show that those plants are responsible for only about one half of one percent of airborne mercury.

Common sense would therefore suggest that reducing or even eliminating emissions from U.S. plants could have little or no appreciable effect on public health. And EPA actually agrees, finding that “even substantial reductions in U.S. [power-plant] deposition…[are] unlikely to substantially affect total risk.”