General Holder makes permanent ATF authority to administratively forfeit property prefaced on bare drug accusations

Cato's Adam Bates has the details:

"...Attorney General Eric Holder, who earned cautious praise last month for a small reform to the federal equitable sharing program, has now delegated authority to the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to seize and “administratively forfeit” property involved in suspected drug offenses.  Holder temporarily delegated this authority to the ATF on a trial basis in 2013, and today made the delegation permanent while lauding the ATF for seizing more than $19.3 million from Americans during the trial period.

Historically, when the ATF uncovered contraband subject to forfeiture under drug statutes, it was required to either refer the property to the DEA for administrative forfeiture proceedings or to a U.S. Attorney in order to initiate a judicial forfeiture action.  Under today’s change, the ATF will now be authorized to seize property related to alleged drug offenses and initiate administrative forfeiture proceedings all on its own.

The DOJ claims this rule change doesn’t affect individual rights (and was thus exempt from the notice and comment requirements of the Administrative Procedure Act) and that the change is simply an effort to streamline the federal government’s forfeiture process.  Those who now stand more likely to have their property taken without even a criminal charge may beg to differ...." Excerpted from Bates, Adam. "Quiet Change Expands ATF Power to Seize Property." Cato Institute. February 25, 2015. Accessed February 25, 2015.

I first reported on the then-impending "trial basis" delegation here, in 2012.

General Holder's delegation is bad news not simply because it gives yet another federal agency the power to administratively forfeit property on bare rumor and accusation (although that is reason enough, obviously), removing the ATF's need for the blessing of an external agency or judicial authorization removes structural protections. Structure, here, protects individual rights.  Any change thus should have triggered the APA's public notice-and-comment requirements.

The Federal Register explanation of the change is available here.


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