BATF: The Next Front on the Federal Forfeiture War on Cash

Wednesday, August 29th, 2012

Over at the Americans for Forfeiture Reform blog, AFR policy analyst Scott Meiner reports:

Attorney General Eric Holder has granted the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) authority, for a one-year trial period, to seize and administratively forfeit property allegedly involved in controlled substance offenses pursuant to United States Code Title 21 › Chapter 13 › Subchapter I › Part E › § 881.

21 U.S.C. § 881 is, among other things, often invoked to seize and forfeit bulk currency, where no drugs are found, on theories that the currency was furnished, or intended to be furnished, in exchange for a controlled substance.

AG Holder’s rulemaking announcement declared that such changes are exempt from the general notice and comment requirements because the department determined that the change does not affect individual rights and obligations.

AG Holder also declared that this rule change lacks sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

The rule takes effect February 23, 2013, and is final:
Notice and comment rulemaking is not required for this final rule. Under the APA, “rules of agency organization, procedure or practice,”5 U.S.C. 553(b)(A), that do not “affect[] individual rights and obligations,”Morton v. Ruiz, 415 U.S. 199, 232 (1974), are exempt from the general notice and comment requirements of section 553 of title 5 of the United States Code.
Eapen Thampy, Americans for Forfeiture Reform

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33 Responses to “BATF: The Next Front on the Federal Forfeiture War on Cash”

  1. #1 |  Woog | 

    Awesome. The BATFU are now official highway robbers.

    Correct me if I’m wrong: didn’t we start the idea of law enforcement in the first place to GET RID of highway robbers?

  2. #2 |  Eapen Thampy | 

    Hmm. If I have time I should do a post about the Sheriff of Nottingham.

  3. #3 |  Nancy Lebovitz | 

    Off-topic: Prosecutor gets ignored rape kits examined– she’s only been able to get funding for about 10%, but it’s a start.

  4. #4 |  Nancy Lebovitz | 

    Forgot to mention– that was 11,000 rape kits that were sitting in a police warehouse.

  5. #5 |  TomG | 

    I’ll bet this is one change by Holder that most of the Republicans won’t raise a loud fuss over.

    How about it, Mitt? – $10,000 bet that your party doesn’t promise to stop this in its tracks and reverse it if you get elected.

  6. #6 |  C. S. P. Schofield | 


    I wouldn’t like to bet one way or the other. On the one hand, the 2nd Amendment crowd absolutely DESPISE the BATF. On the other, the “Business as usual” Political Class Republicans have the moral fibre of duckweed.

  7. #7 |  derfel cadarn | 

    Yet another example of how being your own judge is not in the people’s favor.

  8. #8 |  DoubleU | 

    for a one-year trial period

    Nothing is so permanent as a temporary government program.
    — Milton Friedman

  9. #9 |  Uzza | 

    Well let’s see. We can kill you if you are a “suspected terrorist”, and we can take all your stuff if it is “allegedly involved”. Anything else we haven’t thought of?

  10. #10 |  egd | 

    @#5 – Rather than decry the actions of the Democrat Attorney General, you decide to cast aspersions on a hypothetical Republican administration?

    “such changes are exempt from the general notice and comment requirements because the department determined that the change does not affect individual rights and obligations.”
    This is the problem with the theory that the government grants you rights. What the government gives the government can decide to take away. AG Holder should be [i]at least[/i] fired for ignoring the rulemaking process.

  11. #11 |  Bob | 

    Wait… Isn’t this a huge conflict of interest for the BATF? If they sell a bunch of guns to a criminal organization, then grab the money in forfeiture… won’t that have been their own money they’re forfeiting? What if someone asks where the guns came from in court?

    Oh wait! I forgot! It’s Federal Court! The BATF will be fine.

    But think of the possibilities! If a Federal Agent lies to another Federal Agent during a forfeiture shakedown, is that a felony? What if a Federal Prosecutor lies to a Federal Agent during the forfeiture trial for the money the BATF confiscated from itself? Is that a felony?

  12. #12 |  Yizmo Gizmo | 

    I often carry around large amounts of hops (looks like pot),
    flour, and $50,000,000,000 or so Monopoly money just to toy with them.

  13. #13 |  el coronado | 

    What?!? This is outrageous! *Surely* Comrade Obama would put a stop to this blatant State Thievery/Power Grab…._if only he knew about it_! Comrade Obama loves us and cares about our well-being! He has said so many times! That bastard Beria….er, “Holder” has tricked him once again!!

  14. #14 |  Random Texan | 

    Wait, their ability to seize large amounts of cash because they may or may not have been involved in illegal activity “does not affect individual rights”…?

    My mind boggles…

  15. #15 |  BamBam | 

    @9, they have this left

  16. #16 |  liberranter | 

    @#10: C’mon now, does it really matter whether the target is a Demopublican or a Republicrat administration? Name one administration of either “party” that has ever distinguished itself from the other when it comes to actions like this.

  17. #17 |  Nancy Lebovitz | 

    Obama actually did some good work on civil liberties when he was an Illinois state senator– he got a law passed which required videotaping confessions and interrogations in capital cases. Even that small and obvious improvement took a lot of work.

    I had hopes that he’d continue promoting due process when he became president. You could argue that he’s made the situation worse (potentially a lot worse) because he’s that ambitious for more power for himself, and I think that’s reasonable, but the other piece is that the public generally either wants an abusive justice system or doesn’t care, and there’s a limit to how much better a politician can be than their public.

  18. #18 |  Bill Wells | 

    Not so fast, folks….. Did you actually read the Federal Register entry before blowing up?

    The new directive does not arrogate to the government any new powers. It merely says that the ATF is now allowed to do directly what it once had to ask the DEA to do for it.

    Save your outrage for a real government power grab. This isn’t one.

  19. #19 |  The Next Front on the Federal Forfeiture… The War on Cash « When Tennessee Pigs Fly | 

    […] Rate this:Share this:TwitterFacebookEmailRedditLike this:LikeBe the first to like this. […]

  20. #20 |  Jim | 

    Phew, they had me going there for a while, thanks, I feel much better now

  21. #21 |  el coronado | 

    You’re a funny guy, Bill. “Did you actually read the federal register?” Naw, was too busy reading the phonebook. Sorry. So the ATF can now steal *directly* from anyone it likes, rather than having to jump through an interdepartmental/bureaucratic hoop like it used to.

    Oh! Well then! Nothing to get pissed off about HERE! Forward!

  22. #22 |  albatross | 


    Yeah. Obama has been a massive disappointment in the civil liberties department, presumably because he understands that fighting for civil liberties for accused criminals and terrorists is a bad way to get and keep power, and getting into a fight with the intelligence and homeland security and police agencies is a very good way to have power taken from you. (Perhaps, like Russia and Pakistan, the US is a country where it’s simply not practical for a politicians to directly take on the intelligence services.)

  23. #23 |  albatross | 

    (sorry cut off)

    But the real disappointment is the American people. Our torture programs, massive domestic spying, rather bloody interventions in other countries, assassination of alleged enemies, civil forfeiture, supermax prisons, drug warrants served via SWAT team, persecution and silencing of whistleblowers–all that is not as widely discussed and known as it should be, but when it comes out in public, it makes very little spash. When torture became a political issue, it was more or less a 50/50 split on partisan lines. Domestic spying and impunity for any kind of war crimes done is bipartisan consensus policy, and this seems to raise very little outcry. People routinely joke about prison rape, which makes me suspect that more knowledge about the horrible conditions some prisons have won’t bring a lot of political pressure for change.

    My sense is that these issues aren’t all that popular–that there are more votes tobe lost than won trying to make supermax prisons less godawful or trying to decrease the amount of rape in prisons or prosecuting people for torturing suspected terrorists to death. And basically amoral politicians like Obama and Romney recognize that, and act according to their interests.

  24. #24 |  Bill Wells | 

    #20: el coronado

    Certain commenters seem to think that the directive gives an ability to the ATF that it didn’t have before. Somebody needed to point out that it didn’t, it merely changed how it went about exercising one it already had.

    Certainly, that’s not a good thing–it makes it easier for the ATF to do forfeitures which will likely increase the number that it does–but it is not even close to the evil of letting the ATF have that power in the first place.

  25. #25 |  egd | 

    @#16: Yes, it matters. Not because either is necessarily better than the other, but because objecting to the action sends a message that we’re not going to tolerate it.

    When the government acts to take away your rights you can either cry “woe is me, but the other side will do it too” or you can get the petty tyrants out of public office. When the other side does the same thing, you get THOSE guys out of office.

    At some point (maybe) they’ll start to learn.

  26. #26 |  Nancy Lebovitz | 

    albatross, was there a partisan 50/50 split on torture among politicians? Journalists? I can’t remember that large of an anti-torture contingent anywhere.

  27. #27 |  mikee | 

    Could we just change the law so that any cash forfeited was added to the state lottery fund, instead of going to the agency that confiscated it? Cut down the incentive, stop the undesired actions.

  28. #28 |  BooBoo | 

    @#1 | Woog | August 29th, 2012 at 3:11 am
    >Awesome. The BATFU are now official highway robbers.

    Ugghh–government itself is 100% highway robbers! The primary mechanism of the (lawful) robbery is taxation and monetary controls.

    >Correct me if I’m wrong: didn’t we start the idea of law enforcement in the first place to GET RID of highway robbers?

    Haha–no. That’s the big superstition. Larken Rose covers the deception at length in his books. Law enforcement exists to violently coerce people into compliance with the highway robbers’ (government) controls and theft. People don’t even realize they are being robbed. Government was created to instantiate the deception. Your question illustrates how well it is working! ;)

  29. #29 |  Phssthpok | 

    Actually… I’m thinking this may work to our advantage.

    See, Holder, as head of the DOJ, got paid his salary for while illegally providing guns to Mexican drug cartels. Ergo, the logic follows that ALL of his personal assets (house, cars, money, etc…anything he ever bought while employed by should be seized as ‘suspected proceeds’ from his gun running as being material aid to/complicity with drug suppliers.

    Goose/Gander and suchlike.

  30. #30 |  BamBam | 

    Rights can’t be taken away, they can only be infringed upon. Privileges can be taken away. Once you understand the difference, you see how .gov views you – a serf who is only granted privileges.

  31. #31 |  donttread | 

    Just remember this when anyone claims that the Democrats are the party that at least support personal liberty. They seem to be just as happy as the Republicans to trample on the individual rights of Americans in the name of the War on Drugs

  32. #32 |  Self-Funding | Western Rifle Shooters Association | 

    […] BATFE: The Next Front On The Federal Forfeiture War On Cash […]

  33. #33 |  Yank lll | 

    Not Republicans, Not Democrats.. but Domestic Enemy. The concept of lawful civil servants ended many years ago.. all we have left now is what we deserve for our laziness and self interested foresight.

    LIBERTY above all else.
    Yank lll