Property Rights

Supreme Court Rules that Excessive Fines Clause Applies to States and Constrains Civil Asset Forfeiture

The decision in Timbs v. Indiana is a significant step forward for property rights and civil liberties, though a key issue remains to be resolved by lower courts.

|The Volokh Conspiracy |

Asset forfeiture.

Earlier today, the Supreme Court issued its ruling in Timbs v. Indiana. The decision is potentially a major victory for property rights and civil liberties. The key questions before the Court are whether the Excessive Fines Clause of the Eighth Amendment is "incorporated" against state governments and, if so, whether at least some state civil asset forfeitures violate the Clause. The justices answered both questions with a unanimous and emphatic "yes." As a result, the ruling could help curb abusive asset forfeitures, which enable law enforcement agencies to seize property that they suspect might have been used in a crime—including in many cases where the owner has never been convicted of anything, or even charged. Abusive forfeitures are a a widespread problem that often victimizes innocent people and particularly harms the poor.

It would have been a major anomaly for the Court to conclude that the Excessive Fines Clause does not apply to state governments, after it has previously ruled that the Fourteenth Amendment incorporates nearly all of the rest of the Bill of Rights against the states, including the Excessive Bail and Cruel and Unusual Punishment Clauses of the very same amendment. Justice Ruth Bader Ginsburg's majority opinion offers a good explanation of why incorporation of the Clause is easily justified under the Court's precedents, which require "incorporation" of those provision of the Bill of Rights that protect rights understood to be "fundamental" to our legal tradition:

A Bill of Rights protection is incorporated, we have explained, if it is "fundamental to our scheme of ordered liberty,"or "deeply rooted in this Nation's history and tradition…"

The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that "[a] Free-man shall not be amerced for a small fault, butafter the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . ."

Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay….

When James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta's guarantee by providing that "excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted…."

Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Adoption of the Excessive Fines Clause was in tune not only with English law; the Clause resonated as well with similar colonial-era provisions…

An even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then, the constitutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines…..

Today, acknowledgment of the right's fundamental nature remains widespread. As Indiana itself reports, all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality….

For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts' critics learned several centuries ago…. Even absent a political motive, fines may be employed "in a measure out of accord with the penal goals of retribution and deterrence," for "fines are a source of revenue," while other forms of punishment "cost a State money." Harmelin v. Michigan, 501 U. S. 957, 979, n. 9 (1991) (opinion of Scalia, J.)…

In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection againstexcessive punitive economic sanctions secured by the Clause is, to repeat, both "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition."

Justice Ginsburg also rejected the State of Indiana's argument that the Excessive Fines Clause does not apply to in rem civil asset forfeitures, where the government—in theory—files a claim against the property itself, rather than against the owner, as such. She did so in large part because the Supreme Court had already ruled that the Clause applies to at least some civil forfeitures in its decision in Austin v. United States (1993), and Indiana had not asked for Austin to be overruled. In theory, therefore, the Court could decide to overrule that precedent in a future case, where the issue was properly raised. But it seems unlikely that the justices have any desire to do that.

It is also significant that the Court rejected the argument that the Excessive Fines Clause should be incorporated because its application to in rem civil forfeitures is not "deeply rooted" in American history, even if application to other kinds of forfeitures is:

As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana's suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated.

For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment's Free Speech Clause was "applicable to the States under the Due Process Clause of the Fourteenth Amendment…." We did not, however, inquire whether the Free Speech Clause's application specifically to social media websites was fundamental or deeply rooted.

In sum, the Court unanimously agrees that the Excessive Fines Clause applies to state governments and that it covers civil asset forfeitures. That is a potentially significant victory for property rights and civil liberties, because it could help curb widespread asset forfeiture abuse. While virtually all states have similar clauses in their state constitutions, many are not aggressively enforced by state courts in asset forfeiture cases.

The Court did leave one crucial issue for future consideration by lower courts: the question of what exactly counts as "excessive" in the civil forfeiture context. That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today's decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal. But, hopefully, that will not prove to be the case.

In my view, the Timbs case itself should be fairly easy to decide on remand. In United States v. Bajakijian, a criminal forfeiture case, the Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." The same approach could potentially be applied to civil forfeitures. It is hardly a precise standard, and it may often be hard to tell whether a forfeiture is "grossly disproportionate" or not. But Timbs seems clearly on the "gross" side of the line. The state of Indiana seized the defendant's brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000—a very large disparity. But there are likely to be cases where things are much less clear.

Ginsburg's majority opinion was joined by a total of eight justices. In separate concurring opinions, Justices Clarence Thomas and Neil Gorsuch argue that "incorporation" should proceed under the Privileges or Immunities Clause of the Fourteenth Amendment, rather than under the Due Process Clause (the vehicle used by the Court for the last century or more). Thomas' opinion reprises many of the arguments he made for this theory in his insightful concurring opinion in McDonald v. City of Chicago (2010), the case that incorporated the Second Amendment against the states.

The idea of reviving the largely moribund Privileges or Immunities Clause enjoys widespread (though not universal) support from legal scholars across the political spectrum. Supreme Court justices have been much more wary. It is notable that Thomas' quest to bring it back now has a supporter in Gorsuch, whereas previously he was largely alone. But, as he is still three votes short, it seems unlikely that Thomas will succeed in his effort anytime soon.

In the meantime, it is clear that both Thomas and Gorsuch (like the other justices) agree that the Excessive Fines Clause should apply to the states, and that the Clause constrains civil asset forfeitures. Thomas is in fact a longtime advocate of stronger judicial review of forfeiture cases.

NOTE: Timbs was represented by the Institute for Justice, a prominent public interest law firm, with which I have longstanding connections, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case.

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65 responses to “Supreme Court Rules that Excessive Fines Clause Applies to States and Constrains Civil Asset Forfeiture

  1. “But there are likely to be cases where things are much less clear.”

    I bet Timbs loses on remand.

    The Supreme Court should have just entered judgment in his favor. He should get the benefit of his efforts without spending more time and money.

    1. I guess he has pro bono representation and initially won at trial court so Maybe he will win.

      Still think as a general matter that the S/C should decide things more often, not just remand without instructions.

      1. Never thought I’d see the day when Bob wanted to give those black robed tyrants more power.

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    2. YES!!!!!!!!!!!!

  2. From reading the history, it seems both the trial and intermediate appellate courts ruled that it was excessive, and the Indiana Supreme Court only ruled that the Excessive Fines Clause does not apply to the States.

    So I would argue that the issue has already been decided.

  3. This is good news.

    Nice to see it be unanimous.

    1. Yeah, when everyone from Ginsburg to Gorsuch says the State is abusing its power, then the State is abusing its power.

      And one good thing I saw there is she quotes Scalia’s opinion from a prior case:

      Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of
      punishment “cost a State money.” Harmelin v. Michigan, 501 U. S. 957, 979, n. 9 (1991) (opinion of Scalia, J.) (“it makes sense to scrutinize governmental action more closely when the State stands to benefit”)

      That seems a signal to lower courts that forfeiture awards should be carefully scrutinized, as States have a revenue incentive they lack in other forms of punishment.

  4. Excellent decision –

    Thomas concuring opinion in McDonald is a very good example how the SC over the years has used slight tweaks to circumvent the various protections of the BoR, via the due process clause and tweaks to other precendents. For example, the concept of fundemental rights deserving of protection and non fundemental rights which dont warrant protection, see Stevens dissent in Heller where 2A is not fundamental right (along with his claim that there was no individual right) or the recent case involving emminent domain where the ED could not be ajudicated in federal court until state claims are completed,

  5. What about all the cases where civil asst forfeiture is used against people who never even got charged with a crime? in such cases, wouldn’t even $0.01 constitute an excessive fine? Has SCOTUS just killed Civil Asset Forfeiture?

    1. “Has SCOTUS just killed Civil Asset Forfeiture?”

      Not yet – but hopefully.

      As recall, it was a Rhenquist decision from the 80’s that allowed it to go forward.

    2. Maybe.

      The decision says that the Excessive Fines Clause applies where the purpose if at least partly punitive.

      A pure civil forfeiture (along the lines you indicate) has been justified in that the property is being used as a public nuisance. For example, a building is being used to distribute drugs by a gang, and the landlord can do nothing to stop it. So those kinds of arguments are still open. (Not sure I buy that, but that is where the next battleground will be.)

    3. “Has SCOTUS just killed Civil Asset Forfeiture?”

      I think Civil Asset Forfeiture may have lost Vicksburg, but there’s a lot more fighting to go before it gets to Appomattox.

  6. Can someone articulate why Thomas and Gorsuch care about this being incorporated via the privileges and immunities clause rather than due process? I don’t know the reason for that distinction. Thanks.

    1. Thomas may just care for formalistic reasons. But there is a conservative fantasy where only citizens get the benefit of incorporation. The PI clause is limited to citizens. (It is a fantasy because the equal protection clause applies to everyone and would extend the rights to noncitizens anyway.)

      1. Thank you

      2. “It is a fantasy because the equal protection clause applies to everyone and would extend the rights to noncitizens anyway.”

        Not really. Some rights definitely do not apply to non-citizens. The right to remain in the country seems an obvious one. The right to interstate travel seems another.

        1. The right to interstate travel (and I don’t agree it wouldn’t apply to noncitizens) is a due process right, and there’s no doubt the due process clause applies to all persons. Same with the “right to remain in the country”– everyone, even a deportable alien, has the right to due process. Now, a citizen might have a substantive due process right to remain in the country, but so might a permanent resident who was promised that right by the government.

          What we normally think of as the bill of rights clearly applies to noncitizens, and even if you incorporate it via PI, it still will due to the EPC.

          1. The right to interstate travel, like the right to remain in the country, is a substantive due process right, which is to say it isn’t really a due process right at all.

            The problem here is that you’re reasoning as though P&I were revived, AND the current distortions created to replace their gutting by the Slaughterhouse Court were retained anyway.

            But reviving P&I means recognizing that substantive due process is a crock. Just a bogus work-around the Court invented to avoid admitting the Slaugherhouse decisions were wrong.

            1. Why does reviving PI mean that substantive due process is a crock? You can have both coexist.

              1. Because substantive due process is just something the Court pulled out of its nether regions to accomplish incorporation without explicitly overruling the Slaughterhouse cases. It’s an oxymoron. Do process is about HOW you go about something, not what the something is.

                1. Substantive due process existed pre-civil war, Brett.

                  It’s history is somewhat inglorious, but it wasn’t invented as a kludge for the incorporation debates.

        2. True. BOUNDARY, n. “In political geography, an imaginary line between two nations, separating the imaginary rights of one from the imaginary rights of the other.”

      3. Yes, and no: Non citizens only get the benefit of due process and equal protection, not all the rights of citizens, under P&I incorporation. And by this I mean actual due process and equal protection, not their current distortion to substitute for privileges and immunities.

        I think it’s unlikely the Court would agree to take rights it has already granted to non-citizens via ‘substative due process’ away again, but that it should IS an implication of P&I incorporation.

        1. If a right is extended to citizens against states, like, say, freedom of speech or the right to a jury trial, and the state then says “we are going to deny that same right to noncitizens”, the equal protection clause will bar that.

          And for that reason, PI incorporation will end up at the same place as SDP incorporation.

          1. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

            The amendment explicitly distinguishes between citizens and people, and treats them differently.

            “Equal protection” means just that: Equal protection; You can’t take some group and make them “outlaw”, beyond the law’s protection. But being able to travel anywhere you like, for instance, is not the law’s protection. Having the state intervene if you are robbed or assaulted is.

            1. Being able to travel everywhere (within the US) you like is protected by substantive due process, and as you note, the due process clause applies to persons.

              Again, let’s say a state denies jury trials to noncitizens. Equal protection violation, right? Now how’s that different from just incorporating under the Due Process clause?

            2. I agree with you, Brett.

              There is a valid distinction to make based on the text of both the 8th & 14th amendments. I think the outcome of this case is error because of these distinctions.

              Civil asset forfeiture is being used far beyond its original purpose and it’s abuse should be stopped.

              To me, it’s unfortunate that the Indiana state constitution’s excessive fines clause (as part of the state’s BoR) wasn’t relied on by the state court to protect the defendant.

    2. Read Thomas’ concurring opinion in McDonald. He points out how the due process clause has been used to circumvent the BoR. He cites numerous examples of how the courts have ruled that rights can be denied as long as the individual has been afforded due process in the denial. Similar to how Stevens opined in his mcdonald dissent that 2A was not a fundamental right and therefore not subject to incorporation under the due process clause. (my mistake on an earlier post incorrectly citing Steven’s heller dissent)

      1. Substantive Due Process is where you get the rights.

        Procedural due process is a whole different thing.

    3. Interesting that Gorsuch, and not Thomas, joined Ginsubrg’s op.

  7. In the context of civil asset forfeiture (where a known property owner is nonetheless not convicted of any crime), I think the appropriate threshold for “excessive” is about $1.00

  8. This is why I’ve always said that we should amend the Constitution to state that any fines collected anywhere in the United States must be escheated to the Treasury. Remove the “profit” incentive Scalia notes, and all levels of government will only have an incentive to enforce the law and levy fines to the extent that some other aim is satisfied.

    1. Eh, I’m not really convinced of this. I think the average beat cop is more concerned with the punitive aspect of asset forfeiture (I know this scumbag is guilty and this will teach him a lesson) than he is with the “profit” incentive. Especially in larger cities/police departments – adding more money to the general fund is far from guaranteed to trickle down to anything that might actually noticeably benefit any individual officer.

      1. Right, but individual officers enforce the law in a way that is directed from above. Also, judges have an incentive to levy high fines, with the resulting accolades heaped on the individual officers likely to further their overenforcement in the future.

      2. Not so sure about that, in a lot of places the department gets some of the loot, essentially ending up with a slush fund that can be spent on just about anything, since it wasn’t obligated as part of the local budget.

        1. Right but “the department” can still be a huge faceless bureaucracy with about 10 layers of administrative bloat between “the guy who decides how the money is spent” and “the guy who collects the money from the perp via asset forfeiture”. To what extent can the average patrol officer access “department” funds in, say, the LAPD?

          1. So what? The average patrol officer’s reviews can be based on number of tickets written, people arrested, etc.

          2. This is from a 2011 article strongly suggesting it’s about the money, not the drugs.

            ” A major NewsChannel 5 investigation has uncovered serious questions about Tennessee’s war on drugs. Among the questions: are some police agencies more concerned about making money off the drugs, than stopping them? . . .

            NewsChannel 5 Investigates asked, “So if these officers out on the interstate don’t come up with cash, then they might lose their jobs?”

            “Well, it’s a possibility, yes,” Chandler answered. . . .

            In fact, a review of daily activity sheets kept by the 23rd discovered that, when officers noted the location of their traffic stops, there were 10 times as many stops on the money side. . . .

            After DICE got a $1 million seizure last fall, police video shows that a DICE officer suddenly found himself being blocked by a unit from the 23rd while watching the westbound lanes. Within minutes, five units from the 23rd were lined up in a show of force.

            As a result, the two agencies had to work out a “letter of agreement,” specifying who would have priority on the westbound lanes on which days.”

      3. adding more money to the general fund is far from guaranteed to trickle down to anything that might actually noticeably benefit any individual officer

        When I paid my “blocking” moving violation fine, the lawyer explained 1/3 went to the police, 1/3 the state, and 1/3 the state’s judges’ retirement fund.

        Nah, the officer has no personal gain incentive in this system of “it’s not quotas”!

        1. And so much for the ‘independent judiciary.”

  9. My view is: If corporations are people, than my Land Rover should, similarly, be seen as a person.

    (And I’ve known guys who loved their cars and trucks more than they loved their wives/girlfriends…and perhaps more than some of their kids. More evidence in support of my cars = people theory.)

  10. The Court did leave one crucial issue for future consideration by lower courts: the question of what exactly counts as “excessive” in the civil forfeiture context. That is likely to be a hotly contested issue in the lower federal courts over the next few years.

    Why? We already knew the excessive fines clause is binding on the federal government, and the Supreme Court has already explained how that applies to asset forfeiture. Why would this opinion change how federal courts analyze these claims.

  11. Unless there’s something I’m missing, I’m having trouble seeing a lot of practical change emerging from this holding. As the opinion notes, every state has its own protection against excessive fines. (Including Indiana — as best I can tell, Timbs simply didn’t raise any claims based on the state constitution.) And since the Supreme Court didn’t offer any particular guidance as to how states should analyze Eight Amendment excessive fines arguments, I’m not sure I see why we would expect state courts to do anything differently than they already do.

  12. The author of the 14A Privileges or Immunities Clause said after it’s adoption as Chairman of the House Judiciary:

    “The clause of the fourteenth amendment, ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”

    He of course stated during debates the P&I’s had nothing to do with state citizens within their own state limits, so one would have to bury their heads in the sand to make a P&I’s argument.

  13. The civil forfeiture of assets without a trial or even enough evidence to get a warrant for an arrest has been abused terribly. Under the guise of stopping drug dealing, many jurisdictions used asset forfeiture as a piggy bank for police departments.

    If the stench hadn’t been so bad, this would never have gone to the courts. Better a few drug dealers keep some ill-gotten gains than a citizen to lose his property without a trial.

    1. People willingly buy enjoyables they want from an owner willing to sell them. To looter brainwashees THAT is ill-gotten, whereas armed robbers with badges are First Responders? to whom the world owes impunity for their robberies and murders.

  14. So how about the Supreme Court simply instructs us on what bits of the Bill of Rights are *not* incorporated.

    Grand juries, I suppose, no modern woke person supports *those.*

    Juries for civil trials? Gotta have room for experimentation.

    Unanimous juries? Where’s the fun in that?

    Quartering troops? How about drawing and quartering the traitors who insult our military?

    Anything else ready to be tossed on history’s ash heap as far as the states are concerned?

    1. Justice Cardozo – a great judge, the best, everyone thinks so – didn’t think double jeopardy violated ordered liberty, so that should be OK.

      The right against self-incrimination is a relic of a time when the government was oppressive and had all sorts of bad laws and the police were abusive. We don’t it any more.

      1. don’t *need* it.

    2. Well, Sen. Jacob Howard said only those amendments a citizen could claim as a party in federal courts are what actually are incorporated, so everything else is incorporated.

      1. **else is not incorporated**

  15. If Civil Asset Forfeiture is supposed to reduce crime if no crime is committed yet the government takes the assets how does that stop crime. Now if the persons who civil assets are forfeited has not committed a crime and it is not a crime until it is proved in court then the assets should not be kept because that is theft plan and simple. Let them prove that the person is a criminal and the assets came from criminal activity. An example: If a person rents a property to another person and does not know that the person is a criminal until after the police raid the rented property where they find large sums of money and drugs the police take the rental property as well as the money and any other assets that the criminal had but the property is not the criminal’s nor is the owner part of the crime yet with trial the police take the property and there is no recourse.

  16. Are Thomas and Gorsuch implicitly saying the 8th Amendment applies only to citizens?

    In other words, that the ratifying generation of the 8th Amendment understood that excessive bail & fines, and cruel & unusual punishments were permitted under the Constitution to be used by the Union government against non-citizens inhabiting state territory?

    I think the word ‘citizen’ is absent from the 8th Amendment because the ratifying generation understood the prohibitions (on excessive bail & fines, and cruel & unusual punishments) were to apply to any person (whether citizen or non-citizen).

    1. I’ve come up with the following:

      That even without the 14th Amendment, Congress could declare it a violation of the law nations for state officials to practice discriminatory mistreatment of foreign residents.

      Also, the President and Senate could ratify treaties with various countries giving equal treatment to the citizens of the parties.

      This would be under the pre-14th Amendment Constitution, hence there would be no need for the 14th Amendment to interfere.

      A key legal gap filled by the 14th Amendment had to do with the enforcement of the rights of citizenship by the feds.

  17. Since Constitutional Law trumps all other laws, this was a no-brainer and why it was unanimous.

  18. IJ is doing a bang-up job of declawing the looter Kleptocracy.

  19. In TImbs, the court opinion used exactly the same standard that the court in Bowers v. Hardwick has used to conclude that sodomy laws do not violate any fundamental rights.

    Since then, the court’s liberal wing has used a two-tiered approach. When it can command a near-unanimous majority, as it did here, the Bowers standard (“implicit in the concept of ordered liberty” and/or “deeply rooted in this nation’s history and tradition”) is used. When it can’t, it issues a 5-4 opinion incorporating a more lenient (and never clearly specified) standard.

    I suspect one consequence of Kavanaugh’s appointment is that the more lenient standard will no longer command even a narrow majority. If so, Timbs will likely be cited as controlling authority if some of the existing lenient-standard decisions are reversed.

  20. One very important consequence of switching from Due Process to Privileges and Immunities would be that non-citizens would have no rights against states. (It addresses “the privileges and immunities of citizens of the United States,” after all).

    It may be a distinction without a difference in this case. But it would make a very, very big difference in general, especially in the current climate where immigration policy has had increased social and political contexts and consequences.

  21. I am glad SCOTUS made this ruling, but plenty of the general public are still all for this sort of thing if it’s made against “bad people”. Note who is labeled as “bad people” will be decided by the State or Federal Government, which will directly profit from such seizures. Furthermore, as a recent example, even our President is talking about trying to sieze some of El Chapo’s dirty money, and he is not alone. The Democrats who hate Trump want to get a piece of it too. I never support the government violating our rights, even if those rights are those of an evil man.

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