Tuesday, July 05, 2005

Gutting the ATFE

Read this and then come back to me:


Done? Good....

Now this case is about taxes, but theres something very important about the courts nterpretation of the delegated powers of the executive branch.

Most significantly, the Court held, relying on a 1920 decision by the United States Supreme Court, that the principles of due process apply to all administrative orders. We take that to mean the Court’s order applies not only to IRS first party summonses, but also to IRS third party summonses, and to IRS levies and liens.

In what may be the most significant sentence in the 13-page decision, the court stated:

“The rule of due process upon which we relied in Schulz I, and upon which we rely now, can be stated thus; any legislative scheme that denies subjects an opportunity to seek judicial review of administrative orders except by refusing to comply, and so put themselves in immediate jeopardy of possible penalties ‘so heavy as to prohibit resort to that remedy,’ Oklahoma Operating Co. v. Love, 252 U.S. 331, 333 (1920), runs afoul of the due process requirements of the Fifth and Fourteenth Amendments.“ [Page 10].

Although the objects in contention in Schulz were IRS administrative summonses, it is unavoidable that the Due Process issues raised and articulated by the Court in Schulz have direct implication for all forms of routine IRS administrative process including liens, levies and seizures. This decision reiterates those constitutional principles.

One might note, this also GUTS THE ATFE COMPLETELY.


Because all they have are administrative procedures. None of their rules are actually laws. Prior to this decision the administrative procedure was how the executive branch got around constitutional challenges, because it is very difficult to challenge the constitutionality of them in court. THe executive powers for administering laws are very broad, and widely open to interpretation. Well this decision basically says they have NO VALIDITY UNDER THE LAW; without a federal court order backing them, they are merely a request.


All those lists of parts etc… that aren't in any legislation as illegal? Nope, now they need a law, or a court order to say they are illegal. Not only that, but it's going to be pretty damned hard to find grounds for those court orders. Before they always hid behind the shield of "administrative procedure", but NO MORE.

This applies to many executive orders as well; specifically those not applying to national security, war powers, or the military, and affecting domestic issues or american citizens within the united states and its territories (Exective orders are writs from god everywhere else, presuming we can enforce them that is).

See the ATFE, the DOJ, and the Commerce departments have had these lists of guns and parts that couldnt be imported... Well unless it's formalized in blackletter law, IT'S GONE.

Oh and in '86 the ATF put in place an administrative procedure that banned the production of new automatic weapons for sale to non-law enforcement civilians; guess swhat, IT'S GONE.

Not only that, but because of this ruling, and until they get a court order or law that says otherwise, IT’S AS IF THEY WERE NEVER IN FORCE; because they never were legal; at least for new "offenses" that have not yet been adjudicated. Once a judge has ruled, then the adminsitrative procedure has the force of law... but here the great part... ONLY FOR THAT PARTICULAR INSTANCE. A judge will have to rule on each individual case or warrant until and unless they produce actual federal law.

This just completely destroys the ATFE, and a whole bunch of other federal agencies. It may do the same for states under supremacy doctrine if the administrative procedure used by the state is found to violate due process, or any other constitutionally controlled issue.

I'm thinking that gun owners in CA, NY, MA, and NJ might have somethign to say about that... maybe using the "Arbitrary and Capricious" doctrine, equal rotection, or hell even making a 2A claim (never gonna happen. Lawyers are too scared).

Of course it is also a MASSIVE power grab for the federal bench; not that that is in any way surprising...

Oh, and no matter what the courts say, ATFE will still come and blow your house up, possibly killing you, or your elderly neighbors in the process if they think you are a violator. It’s not like they are going to let a little thing like law, due process, or the constitution get in their way.

Just ask David Koresh... Oh wait....


Ok, a few people have commented that "thats unrealistic" or "the REAL application is more limited" or "Correct in principal but in reality" etc...

Yep, they are right.

Ok, I am speaking in the judicial ideal here; as I said, as a practical matter it is a different world. The ATF is still going to do whatever it wants to do, unless a judge forces them to do otherwise, which means going to court.

What this really does is, once you actually get to court, the burden of proof for justification or the policy shifts now to the government; and if they can't positively justify the policy, it has no force.

We dont have to argue a negative defense against the administrative procedure, they have to argue an affirmative application.

It also means they can't simply seize and destroy property based on their administrative procedures. In fact I dont think a seizure warrant would be sufficient, I believe they would actually need to amke a positive justification of their seizure and destruction separately from a warrant, giving you the opportunity to respond (if my reading of the due process argument is correct anyway).

And of course this still has to go to the supremes, who one might have noted recently, are loathe to limit the power of the state.

On a fundamental level, what I say is true, but fundamental vs. practical....