Applied TLP

Megan McArdle writes,

Trump has coalesced around himself the people who are most interested in order, leaving the people who are focused on freedom and coercion somewhat unmoored. There’s a place for that conservative thought: Crime is the ultimate barbarian force, attacking the gentle roots of our civilized order. It’s easy to see why people conclude that if criminals are bad, then things which attack criminals must be good.

But the Founding Fathers were not unaware that bad people would sometimes get away if prosecutors had a high burden of proof to meet. They were not unaware that some of those people would go on to do further bad things. What they understood, and Sessions apparently does not, is that there are even worse things than crime, and one of them is a government that is allowed to steal our liberty like a thief in the night.

She is referring to civil asset forfeiture, which only a hardcore civilization-vs.-barbarism type could love. That is, you really, really have to believe that the police represent civilization and that when they confiscate the assets of suspects it is a blow against barbarism.

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41 Responses to Applied TLP

  1. Andrew' says:

    Trump is not happy with sessions. But sometimes if a guy is not going to accuse you of a crazy conspiracy theory you stick with him because he stuck with you. But Sessions will be gone soon because he can’t stop making bone headed mistakes.

    • Andrew' says:

      If, on the other hand, you want to give Sessions the benefit of the doubt (and I don’t), one theory might be that tightening screws on federal enforcement powers is a strategy of strengthening a bargaining position with blue state policymakers.

      • Andrew' says:

        “Crime is the ultimate barbarian force, attacking the gentle roots of our civilized order. ”

        And also, this is not true. These crimes we are discussing are either generally accepted as not arming others, or are crimes committed by law enforcement.

        The biggest threat to civilization is mandated government anarchy.

      • Andrew' says:

        It is so crazy that even Trump’s strongest supporters don’t even understand Trump
        That or Jeff Sessions doesn’t know how to use a phone. Trump has to meet with Russians because no Americans will talk to him.

        • Andrew' says:

          It is like when I was young and naive and I asked Ron Paul if he does anything with Cato. He told me “they’ve never reached out to me.” I was flabbergasted. I still am, but in a different way now.

    • Andrew' says:

      I think McArdle is a reader, btw.

    • Andrew' says:

      It is tough work with kids and a day job to keep up with SCOTUS screw ups and trying to keep up with everybodies’ various delusions about Trump, but in my estimation he just wants Sessions to stop going rogue. But if Sessions doesn’t learn to pick up a,phone he could be gone soon. Friday seems about right.

  2. Andrew' says:

    Hey, what is the non -public choice rationale behind asset seizure?

    What is so bad and feared that will happen if the law waits for due process?

    An imminent threat from a terror network I’d understand, although it would never really happen that way. But some guy selling marijuana on the side? What is the hurry?

  3. djf says:

    The problem with civil asset forfeiture is that the forfeited asset can be property of a person who did not commit or consciously facilitate any crime. The owner does not even have to be a suspect. The notion that anyone believes we are staving off barbarism by allowing the cops to take innocent people’s property is silly. I’m not aware of any serious conservative (meaning, not a politician or law enforcement official) that supports what Sessions is doing.

    There’s no mystery about why law enforcement likes forfeiture: it’s money in their pocket, it gives them leverage in investigations, and (unfortunately) it’s the constitutional status quo, being an ancient common law doctrine. No “civilization-versus-barbarism” thinking is involved. Just bureaucratic and political venality and tunnel vision.

    • Andrew' says:

      How does common law trump the 4th amendment? Not that we’d need 10% of the bill of rights to know it is wrong, but just asking.

      • djf says:

        It’s the Fifth Amendment and 14th amendment, prohibiting deprivation of property without “due process of law,” that are relevant here, not the Fourth.

        Asset forfeiture has been part of the common law since before the Bill of Rights was adopted, so it is considered to be “due process of law.” I think it’s wrong, too, but that’s the state of the law.

        • Andrew' says:

          Where is that written down?

        • Andrew' says:

          Okay, setting aside the declaration, the 4th, 5th, 14th, 10th and basically all the others, what stops them from just taking everything…based on, oh I don’t know, the commerce clause truck sized loophoke?

          • djf says:

            This is what the courts have said in decisions over the years when the issue has come up. I can’t give you a citation at the moment.

            My understanding that the government can take property that has been used in the commission of a crime, regardless of whether the owner was a participant. So they can’t just take anything. But innocent people can still be screwed. E.g., you rent a house to some people you don’t really know, and it turns out the lessees use the house as a meth factory.

          • Andrew' says:

            We are almost by definition not talking about property inherent to a crime.

        • Andrew' says:

          So, even though everyone knows it is not supportable even when nor abused, and it is only ever abused, we are stuck with it for eternity because pirates and we can’t find it written down?

          • djf says:

            I’m not on the Supreme Court, don’t complain to me.

          • Andrew' says:

            I’m a Google wizard. I haven’t found anything yet.

            I’m simply asking for any help you can offer in finding some rationale other than some asshole said so.

          • Andrew' says:

            And I’m not talking about you, I’m more than happy to take your word for it.

            I’m referring to statemen’s like this that are begging the question.

            “It has long been settled that statutory forfeitures of property entrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment.”

            I know law is utterly asinine, but I don’t want to stop at the Supreme Court saying the stupidest argument I’ve ever heard, or a total lack of argument to be more precise.

          • Andrew' says:

            The Supreme Court was for the settled law before they were against it, and settled it in the opposite direction.

            They are going to overturn it soon, and I hope they provide an actual reasoning this time.

          • sort_of_knowledgable says:
          • djf says:

            I appreciate your gentlemanly clarification that you are not calling me “some asshole.”

            The quote you came up with is from a Supreme Court case, so I think you have already found verification of my understanding of the law. If what you’re looking for is the rationale for the present state of the law, you can read the cases to see what rationales the courts have given (the case that contains the quote you found gives such a rationale – that when you give another control of your property, you assume the risk of the consequences that will follow if he uses it unlawfully). Again, I’m not defending civil asset forfeiture law as it exists, so don’t ask me to defend it.

          • djf says:

            A more recent SCOTUS case dealing with the constitutionality of civil asset forfeiture is Bennis v Michigan (1996). If you’re interested, here’s a link:


          • djf says:

            BTW, the Clinton administration supported the pro-forfeiture result SCOTUS reached in Bennis.

  4. Handle says:

    There just isn’t much correlation between whether conservatives or progressives dominate a state’s politics and the FreedomWorks score of its asset forfeiture laws.

    And one should remember that some of the criticism of DoJ’s policy here is overblown. One of the claims is that is allows local jurisdiction law enforcement to bypass state laws restricting forfeiture by going “over the state’s head” and partnering with the Feds and getting a cut of the loot anyway. But states can prohibit that cooperation too, as New Mexico has, and California might do so soon as well.

    • Andrew' says:

      This strikes me as one of the issues they might agree. Free money is good for cops and government.

  5. Andrew' says:

    Taking houses, cars, ditch diggers, black small business cash, and even drug dealer cash which is alost a burden to them is exactly not like seizing a pirate ship or weapon.

    These laws are unconstitutional. Their legal reasoning from 200 years ago is WRONG. Everyone can’t be so stupid that I solve all these things in an afternoon in my spare time, can they? This is very disappointing.

    • Andrew' says:

      I just proved asset forfeiture will be overturned, and it was trivial for somone whose only legal training is pointing how the Supreme Court and everyone even dumber is trivially wrong more often than not.

  6. Andrew' says:

    So, serious question, is the entire purpose of the SCOTUS to be an appeal to authority, to give the pretense of legal reasoning in order to paper over what is politically expedient? I’m about to close the case as guilty as charged.

    Very disappointing

  7. Andrew' says:

    Gotta run, my assistant put a meeting with some Russians on my calendar and I feel this strong compulsive need to meet with as many Russians as possible.

    When you need to meet with some Russians, no substitute will do.

  8. Andrew' says:

    The legal standard simply can not be “we defer to the people taking stuff and keeping it to determine if stuff should be taken.”

    And yet that is the only legal standard that covers the current state of affairs.

    That is how you too can see the future and that this practice will be heavily reformed by the SCOTUS taking their characteristically aeonic sweet timetable. Who cares that government loses legitimacy by the minute every day this stands.

  9. Andrew' says:

    Why does it take a jagoff engineer to explain to people making 7 figured screwing up the law that a house that parents aren’t even aware a crime is taking place FROM is exactly the opposite of a pirate ship?

    • Andrew' says:

      And btw, holy fs. If they screw THIS up this badly, holy fs. They really can’t have gotten anything right except purely by accident.

  10. Andrew' says:

    And you people wonder why I comment a lot.

    Get this. The entire media has gotten the entire Sessions story completely wrong.

    Trump is mad at Sessions for reusing himself on Clinton NOT Russia.

    OMFG. I ALMOST can’t believe that I’m right and the entire media is wrong, except I know them and I know me, and that makes me 100% positive. In fact, I should have known or suspected from the beginning, but I just figure it out.

    • Andrew' says:

      And if you don’t understand why this completely turns today’s entire news cycle on it’s head, I’d be happy to explain it.

      Anf if I’m right, this should be one of those red pill moments for you

  11. Andrew' says:

    “Because we can seize a pirate ship from an owner we can’t prosecute because he is a foreigner across the ocean, that means we can take a house that is like any other house and fungible cash that is like any other cash from parents beca use we have their son IN CUSTODY.”

    Law is the art of taking smart people and making them really really stupid.

    Precedent has to be based on some reasonbig other than precedent. “Because some other dumbass made a mistake” is not a legal reasoning.

    • Andrew' says:

      Again, why does it take a jagoff engineer to fix the Supreme Court?

      And you heard it here first, Jason Chaffetz or Trey Goudy for AG. If Sessions would listen to some jagoff engineer, he wouldn’t pay the price of being just another guy who doesn’t understand Trump. And I’ll grant that this is a low probability prediction and Sessions could save his job by picking up a phone, but I also understand typical politicians.

  12. Andrew' says:

    I sh!t you not.

    Reasoning Behind Civil Forfeiture Laws | The Sessions Law Firm, LLC › whats-th…
    AMP – Sep 29, 2014 – The Sessions Law Firm provides exceptional representation to those facing civil asset forfeitures.

  13. DVE says:

    Agreed. Except for this egregious sentence:

    “That is, you really, really have to believe that the police represent civilization.”

    No. The police are the guys who do the dirty work for the local
    DAs. And one might add: the AGs. The fish rots from the head.
    Forfeiture did not spring full grown from the tail, but from the head.
    Let’s focus on the “root cause” and ask ourselves what we would do when our betters play upon our baser impulses.

  14. Foxhuntingman says:

    I am astonished to read that common law allowed asset forfeiture. As long ago as 1215 Magna Carta established the rule that no free Englishman could be deprived of his land except by judgment of his peers. The notion that the fifth amendment provides less protection to the citizen than Magna Carta is simply absurd. The authority to seize pirate ships derives from maritime law, which is not English common law.

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