Obama’s pro-10th Amendment policy shift

The Obama administration has just made a rather uncharacteristic policy shift. Buried deep within last Friday’s news cycle, Attorney General Eric Holder announced that the U.S. Department of Justice (DOJ) will no longer engage in state forfeiture adoptions for cash and vehicles. While this may be a seemingly innocuous change in practice, this is unequivocally the most federalist action made by the chief executive since assuming office in 2009.

Most people who follow criminal justice policy are aware of the pernicious, high-profile abuses of civil asset forfeiture: The practice whereby law enforcement entities can permanently dispossess individuals of their property under the mere suspicion of criminal activity and with no attending conviction. However, few realize that, athwart the states’ efforts to restrict or even eliminate the practice, the federal government has been offering a convenient end-around to local and state agencies, while keeping 20 percent of the value of the property for their troubles. This program is known as equitable sharing.

{mosads}Under the new guidance, state and local entities will no longer be able to rely on partnerships with federal agencies to provide a legal venue with fewer protections against abuse. By using the lower standard, the property can be forfeited irrespective of the protections provided by the state. To this end, state legislatures are now nearly fully culpable for abuses that happen under state law.

This prohibition is not universal. Property associated with dangerous items (such as firearms, ammunition or explosives) or contraband (such as narcotics or child pornography) is still subject to seizure and remittance. Further, certain entities such as joint task forces will be exempt from the new directive. While this would still allow for abusive seizures subject to the lower federal standard, the complex nuance and effort required to work these cases will likely stop the penny ante abuses that make up a good deal of the more horrific cases.

Unfortunately, this shift is only as permanent as the whim of the president. Should the next administration (or even this one) have a change of heart, these changes could disappear as easily as they were enacted. Luckily, federal legislators in key leadership positions have signaled a desire to end the practice.

Perhaps it is cynical to think so, but this abrupt change of course is likely due more to political calculation than to sudden deference to the 10th Amendment. The administration has, time and again, resisted calls to wean its subordinate agencies and state and local collaborationists off dubiously acquired funds and equipment. In fact, it has recently doubled down on some of the more controversial programs under the DOJ’s umbrella.

The writing on the wall is clear. With both the Senate and the House having taken up legislation that would severely hamstring — if not wholly eliminate — abuses in forfeiture proceedings, the president can either have this reform forced upon his administration or proactively remove one of the more concerning sticking points to the new attorney general’s confirmation.

The police power belongs, as it always has, to the individual states. The current administration is not the only one in recent memory guilty of erecting mechanisms and incentive structures that, directly or indirectly, wrest this power away from those who still must live amongst their constituents. Federal law and practice has, over the past several decades, displaced control from the state house to the Capitol.

Equitable sharing has been catnip for law enforcement to circumvent state restrictions that protect the innocent from forfeiture. In that sense, it has been the other side of the same coin of federal programs that attach strings to taxpayers’ funds doled out to the states. While the underlying merits of such policies can be debated, it is undoubtedly coercion when federal transportation dollars are returned to the states with conditions such as suspending driver’s licenses for drug convictions and uniform highway speed limits.

It is Washington’s appetite for power that must be limited. With a State of the Union address littered with proposals to grow the federal government, the new directive ending equitable sharing is unlikely to indicate a renaissance for federalism in this administration, but it is nonetheless a welcome sign that the torch of liberty is not easily extinguished.

Cohen is the policy analyst for the Texas Public Policy Foundation’s Center for Effective Justice. Follow him on Twitter @CohenAtTPPF.