Miiiiiii714

It’s time to have the conversation: Is the Bank Secrecy Act unconstitutional? Beyond the speech and privacy issues, the BSA is a sweeping delegation of law making power. Today we're publishing a new report explaining in detail why that's a problem. 📜Full report is linked in the next tweet, but in a nutshell, the BSA is an incredibly broad law that criminalizes everyday life. As our report explains, breadth rather than ambiguity is the main problem with the statutory text. Take, for example, the money transmission definition: "the problem is not that the definition of 'money transmitter' is uncertain. The problem is that, taken seriously, the definition would convert every paid or paying American into a 'financial institution' and obligate each of us to register with the federal Financial Crimes Enforcement Network (FinCEN) as such, keep extensive records of all transactions, robustly identify all transactional counterparties, and regularly report any suspicious dealings we have had with other Americans or foreign persons. And we must do all of that on penalty of felony conviction, severe fines, and jail time." That's just the plain language interpretation of the relevant provisions. In practice that absurd breadth gets narrowed by regulatory opinion and the courts: "In actual practice no one reads the definition of financial institution as encompassing every paid or paying American. Instead, ambiguity in the definition is invented as a remedy to the statute’s breadth." But this selective narrowing contradicts the plain meaning of the text and also enables endless discretion to choose when to enforce the law and when to not. The result is bad for the predictability of the law and bad for fair and evenhanded enforcement. It raises topical jurisprudential questions involving the major questions doctrine and whether the Court should apply substantive canons of construction like lenity or constitutional avoidance. As judges faced with these issues have said: "Although this court, like all other institutions of the United States, is supportive of the law enforcement goals of the government and society, we cannot engage in unprincipled interpretation of the law, lest we foment lawlessness instead of compliance." By looking through rulemakings and congressional hearings across the last 30 years we come to a startling conclusion: the statute doesn't actually give the Treasury the authority it has used to selectively narrow the definition through interpretation. Instead, and even more problematically from a constitutional separation of powers standpoint, the statute simply delegates a naked power to enforce or not enforce the law to Treasury and does so without any intelligible principle. ⚖️That brings us to the nondelegation doctrine. As Justice Gorsuch has emphasized in recent opinions, Congress not the executive branch is empowered by our constitution to make laws. As we find in the context of the BSA: "Throughout this report we have recounted all the many ways that the Bank Secrecy Act, owing to its incredible breadth, has been interpreted and reinterpreted, expanded and contracted by the courts and by FinCEN. Often these have been good and necessary decisions made to avoid over-application of a dangerously invasive warrantless surveillance regime, to literally prevent our otherwise inevitable drift towards a society where everyone is obligated to spy-on and rat-out everyone else. These are not, however, factual findings. These are not decisions made according to some limiting and sensible criteria set out in the statute. These are policy judgements of serious gravity and they’ve been made by the executive branch with powers unconstitutionally delegated." Are you a big con-law nerd? Read the whole thing, you'll enjoy it. 🤓 Link to follow.