Last week, Attorney General Jeff Sessions rescinded restrictions that the Obama administration had placed on civil asset forfeiture, which allows law enforcement officials to seize property and cash that they believe are connected to criminal activity.
The Justice Department’s decision prompted a rare bipartisan outcry. Stories of individuals who had not been charged or convicted of any crime, yet have had to forfeit their cars, cash and even homes, have forged an unlikely alliance across the political spectrum. The ACLU and the libertarian Institute for Justice condemned the new policy. Sen. Mike Lee (R-Utah) and Rep. Justin Amash (R-Mich.) were among the conservatives who joined the chorus blasting the “big-government scheme to take people’s property without due process.”
But Sessions faces a bigger obstacle than bipartisan indignation. By reviving this practice, he has set himself up for a challenge before the Supreme Court, one in which he will have to contend with Justice Clarence Thomas — conservatives’ reliable ally, but now Sessions’s most formidable opponent.
This year, Thomas signaled that when the right case comes before the court, he would rule that the civil-forfeiture program is unconstitutional. When that happens, it will cut straight to a major ideological tension in conservatism today, presenting a showdown between law-and-order champions and small-government principles. It will also highlight “police exceptionalism,” an inconsistency on both sides of the political aisle between their beliefs about the exercise of state power and their favored approach to constitutional interpretation.
Thomas’s reasoning is based on an originalist interpretation of the Constitution, which, in a nutshell, maintains that the Constitution today means what it originally meant during the founding era. Civil forfeiture did exist in the 18th century, mostly to allow federal officials to enforce customs and revenue laws, which suggests the Founders believed that the practice was consistent with the Fourth Amendment.