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posted by on Friday March 17 2017, @01:16PM   Printer-friendly
from the we-won't-hear-the-case,-but-if-we-could... dept.

The Washington Post has some analysis of a noteworthy Supreme Court non-decision.

In today's [March 6] Leonard v. Texas, Justice Clarence Thomas sharply criticizes civil forfeiture laws. The one-justice opinion discusses the Supreme Court's refusing to hear the case (a result Thomas agrees with, for procedural reasons mentioned in the last paragraph); but Thomas is sending a signal, I think, that at least one justice — and maybe more — will be sympathetic to such arguments in future cases.

From Justice Thomas' statement:

In rem proceedings often enable the government to seize the property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent (though some statutes, including the one here, provide for an innocent-owner defense). Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof.

Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable.

[...] These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.


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  • (Score: 2) by Immerman on Friday March 17 2017, @09:24PM (3 children)

    by Immerman (3985) on Friday March 17 2017, @09:24PM (#480638)

    How could they pass a law? Laws can only be created by congress, and the potential for interpretation is limited - and could be made much less so if Congress knew the Supreme Court could immediately try to twist the words to mean something different.

    What the Supreme Court could do is prevent a law from being implemented in the first place. And in most cases, sooner or later the law will end up in front of them anyway - being able to challenge it directly rather than waiting for someone with the wealth and determination to spend years or decades working their way up through the lower courts would let them strike down blatantly unconstitutional laws immediately, before widespread damage was done.

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  • (Score: 2) by urza9814 on Monday March 20 2017, @04:43PM (2 children)

    by urza9814 (3954) on Monday March 20 2017, @04:43PM (#481576) Journal

    How could they pass a law? Laws can only be created by congress, and the potential for interpretation is limited - and could be made much less so if Congress knew the Supreme Court could immediately try to twist the words to mean something different.

    Well, I'll give you if we had made it that way from the start and congress had exercised extreme caution it might have worked. But I wasn't thinking that way, I was thinking if we made the change today with all existing laws in place. In which case, surely they could find some law or combination of laws or previous court ruling somewhere that sorta kinda sounds vaguely similar to what they want. Interpretation can go a LONG way. That's how we got corporate personhood. That's also how we got the war on drugs out of the commerce clause. They have no problem with arguments in the form of "The law is about X; X is affected by Y; and Y is caused by Z...therefore the law covers Z."

    What the Supreme Court could do is prevent a law from being implemented in the first place. And in most cases, sooner or later the law will end up in front of them anyway - being able to challenge it directly rather than waiting for someone with the wealth and determination to spend years or decades working their way up through the lower courts would let them strike down blatantly unconstitutional laws immediately, before widespread damage was done.

    The problem is that the implementation matters. Take an overly broad reading of a law and you can probably make some argument that it's unconstitutional. Take an overly narrow reading and even the most tyrannical legislation could be found acceptable.

    • (Score: 2) by Immerman on Tuesday March 21 2017, @08:02PM (1 child)

      by Immerman (3985) on Tuesday March 21 2017, @08:02PM (#482356)

      So it seems to me that all of that is already true today, with the caveat that there has to be a lawsuit that gets appealed all the way to the Supreme Court before they get involved.

      I don't see how giving them a premptive "unconstitutionality veto" over any law would make that any worse. Nor do I see any opportunity to expand the law without any particulars under consideration. Perhaps in the case of a law found "constitutionally acceptable" the court opinion could set the tone for it's interpretation, but that could be explicitly stated as not establishing precedent in this context.

      Or, to reduce potential overreach even further, they could be prevented entirely from finding the law "constitutionally acceptable" at all - instead only being able to find it unconstitutional, or drop the case pending future litigation through normal channels.

      • (Score: 2) by urza9814 on Wednesday March 22 2017, @02:19PM

        by urza9814 (3954) on Wednesday March 22 2017, @02:19PM (#482712) Journal

        So it seems to me that all of that is already true today, with the caveat that there has to be a lawsuit that gets appealed all the way to the Supreme Court before they get involved.

        Right. So instead of one branch of government being able to change things all by themselves, someone else has to work with them. If we abuse notation a bit and consider "the people" to be the fourth branch of government, we could say you need two branches to agree on any issue to make a change. The court has immense power to resolve conflicts, with the restriction that *there must actually be a conflict first*. You really don't see the difference between "You can do whatever necessary to resolve disputes" and "You can do whatever necessary to rebuild the whole system however you want"?