The Obama administration is preparing to treat virtually every antique collector, dealer, and auctioneer in America as a criminal.  In the name of saving elephants, the administration is effectively banning the sale of all ivory objects, even if acquired legally decades ago.  Doing so will weaken conservation efforts and enrich those engaged in the illegal ivory trade.

Under the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES) only ivory from before 1989 can be sold.  Unfortunately, ivory prohibition has not stopped the slaughter of elephants. 

The greatest demand for new ivory comes from Asia.  Most ivory in America arrived legally, many years ago. 

Until now the rules were simple and sensible.  Ivory imported legally can be sold.  Moreover, the burden of proof fell on the government to convict you of violating the law.  That’s the way America normally handles both criminal and civil offenses.

However, in mid-February the administration issued what amounted to a ban on ivory sales.  As I point out in my new Forbes online column:

In practice, virtually every collector, dealer, auctioneer, and other person in America is banned from selling ivory items, even if acquired legally, owned for decades, and worth hundreds or thousands of dollars.  Every flea market, junk shop, estate sale, antique store, auction showroom, and antique show is at risk of raids, confiscations, and prosecutions.

First, no imports are allowed, not even of antiques, which before could be brought to America with a CITES certificate. 

Second, all exports are banned, except antiques (defined as over a century old) in what the Fish and Wildlife Service says are “exceptional circumstances.”  At best the administration is raising the administrative and cost burdens of exporting to countries which already limit ivory imports to items with appropriate CITES documentation.  Or the new rule may restrict the sale of items previously allowed, thereby hindering Americans in disposing of their legal collections. 

Third, interstate transactions are prohibited, except for antiques.  But the latter requires “documented evidence.”  Unfortunately, for items inherited or purchased years ago such evidence rarely exists.  Thus, the sale of almost all ivory across state lines is effectively banned. 

Fourth, intrastate commerce, said the agency, is “prohibited unless seller can demonstrate item was lawfully imported prior to” 1990, when the international ban took effect.  But how does someone “demonstrate” when, say, a gift from his or her parents was imported?  If you can’t, you can’t sell the object.

By any standard, the administration rule is unfairly penalizing thousands of Americans.  Why? 

The administration complained about the difficulty in distinguishing ivory imported legally and illegally.  But banning everything fails to distinguish between guilt and innocence.  Moreover, much older ivory, given its manifold unique characteristics, is easily distinguishable from new work. 

The illegal ivory supply also is small compared to that of legal ivory.  Rather than ban the latter in an attempt to limit the former, the government should aid African countries in protecting their elephants, better interdict illegal imports, and identify sellers who specialize in new ivory.

In fact, targeting owners of legal ivory will perversely undermine such enforcement efforts.  Making most ivory in America illegal will vastly expand the ivory black market and dramatically dilute enforcement resources.

Ivory commerce will continue, only mostly underground.  More objects will privately pass among dealers and collectors, never reaching public view. 

The interstate ban, too, will be flouted.  Owners also may hand carry items to other nations without similar restrictions.  Moreover, documentation will be faked.

Collectors and dealers will turn to those already participating in the illegal market, helping criminals expand their networks and increase their profits.  Finally, overtaxed federal agents may prefer to go after easy targets, such as local flea markets, rather than secretive smugglers. 

If the administration does not withdraw its rules, Congress should overturn this unfair attack on the law-abiding.  Washington should penalize poachers and their seller allies—not collectors and dealers who have followed the rules.  Especially since the administration’s new regulations will divert enforcement resources and push owners of legal ivory into the illegal trade, meaning more elephants are likely to die.