[313] in libertarians
Re: administrative proceedings
daemon@ATHENA.MIT.EDU (Vernon Imrich)
Thu Oct 13 17:22:41 1994
Date: Thu, 13 Oct 94 17:18:04 -0400
From: vimrich@flying-cloud.mit.edu (Vernon Imrich)
To: hhuang@MIT.EDU, libertarians@MIT.EDU
>I have been told that most of what government does is not
through civil or criminal proceedings, but through administrative
proceedings which are not subject to the constitutional protections
which accrue, in particular, criminal proceedings.
This is the case for CIVIL Asset Forfeiture, where the government
essentially makes a civil case (as opposed to criminal) regarding
the assets suspected of being associtated with crimes. Under civil
law the burden of proof is much lower than for criminal, also, certain
protections guaranteed in criminal law do not apply (which allows them
to sieze the goods without even pressing charges in many cases). So
even in civil cases your protections are not much good.
The "adminstrative" cases you mention might also be things like
testifying before congress and so forth, where the legal questions are
very hard to figure. Many laws written for federal agencies commonly
give the agencies fiat legislative and executive powers (the EPA for
example is "legislating" when it sets the Ozone level and is "executing"
when it prosecutes violators). This has been widely critized (usually
by conservatives) as a violation of the separation of powers, but has
not been seriously challenged on those grounds.
The last thing I know of is the IRS. There the burden of proof is
clearly on the defendant. If you do not proove that you DIDN'T make
an improper tax filing, you will be convicted.
That said, I have no legal understanding of how all this stuff gets
by the constitutional protections. There's a link from our GoodLinks
page to a site detailing some of the considerations of civil law
regarding asset forfeiture. The paper is from the AG's office
listing the advantages of civil vs. criminal proceedings, but I don't
recall if any constitutional issues are raised.
Vernon
P.S. Another interesting thing on the EPA (and probably many other
regulatory agencies) is that the prohibition of Ex-Post-Facto laws
also does not apply (same thing for taxation too I guess). That is,
if they "clear" a practice or property in 1994, they could decide
to change the standards in 1995 and hold you liable for "clean up"
of stuff you did in 1994 when the practice was declared ok.
/
