Rep. Jim Sensenbrenner wants to build a wall on the southern border, and in a slight twist from President Trump's famous campaign pledge, he wants to make Mexican drug cartels pay for it.
The Wisconsin Republican's plan relies on funding from civil asset forfeiture, a process by which law enforcement can seize money they suspect is linked to drug trade, even before a case involving the person goes to trial. The tactic has grown controversial among some conservatives who argue it violates due process rights, but his plan has the political appeal of targeting a most unsympathetic category of criminals.
If his legislation were to pass, it would establish a potentially significant revenue stream outside of an appropriations process that could be stymied by Democrats who want to block construction of the wall.
"This is a way to fulfill the president's desire to have Mexico pay for the wall," Sensenbrenner, a member of the Judiciary Committee, told the Washington Examiner. "Having the money seized from Mexican drug cartels would mean that the bad Mexicans would end up paying for the wall, and the bad Mexicans have been terrorizing the good Mexicans with crime and kidnappings and murders within Mexico itself."
Sensenbrenner's bill would require Attorney General Jeff Sessions to review the amount of money seized from cartels and develop strategies for increasing that total. Fifty percent of those seized funds would "be made available without fiscal year limitation" to pay for the border wall.
"The [Drug Enforcement Agency] has estimated that the gross receipts of the Mexican drug trade or somewhere between $19-$29 billion a year," he said. "We don't have to be 100 percent efficient to get the the money we need to completely pay for the wall relatively quickly."
That would insulate the border wall from the political fights that deprived the George W. Bush-era border fence of the funding needed to finish construction, to say nothing of Democratic attempts to blame Republicans for a government shutdown if they try to include wall funding in appropriations bills this year.
"It would be inappropriate in our judgment to insist on the inclusions of such funding in a must-pass appropriations bill that is needed by the Republican majority to avoid a government shutdown," Senate Minority Leader Chuck Schumer, D-N.Y., said Monday. "Don't you think we should give time for Mexico to pay for the wall?"
Experience has taught Democrats that it is relatively easy to demand that Republicans keep controversial policies out of the regular appropriations bills needed to avert a government shutdown. But it might be more difficult for Democrats politically — particularly in the midst of an opioid abuse epidemic — to filibuster legislation that establishes a process for seizing drug cartel money.
"Saying that we're going to have the Mexican drug cartels end up paying for the wall, that may very well be something that is powerful enough to get the institutional inertia in the Senate overcome," Sensenbrenner said.
The problem for Sensenbrenner is that the inertia would likely be strengthened by some Republican colleagues who are keenly aware of how civil asset forfeiture has been abused in the past. The list of lawmakers who want to reform civil asset forfeiture has included Sen. Mike Lee, R-Utah, Sen. Rand Paul, R-Ky., — and Sensenbrenner himself.
"With origins in medieval law, civil asset forfeiture is premised on the legal fiction that inanimate objects bear moral culpability when used for wrongdoing," the Wisconsin Republican wrote in a 2015 op-ed. "The practice regained prominence as a weapon in the modern drug wars as law enforcement sought to disrupt criminal organizations by seizing the cash that sustains them. It has, however, proven a greater affront to civil rights than it has a weapon against crime."
Sensenbrenner drafted legislation last year restricting the power of law enforcement to seize money, but he didn't attach those reforms to the wall funding bill.
"I favor giving people an opportunity to try to get the money back from the government quickly, and more efficiently, and not having to file a lawsuit in a federal district court," he said. "I don't think that the drug cartel folks are going to come up and say give me my money back."
His legislation doesn't include much detail on what would qualify as a Mexican drug cartel, leaving open the possibility that the Justice Department would define the term very broadly.
"We're not talking about somebody whose car is seized because he lent the car to his daughter and she went out on [a date] and she smoked pot in the car," Sensenbrenner maintained. "There is a limiting principle here and we're talking about a multi-billion dollar operation that is poisoning the minds and poisoning the bodies of Americans and I think that this probably."
The unpopularity of that "multi-billion dollar operation" could grease the skids for the legislation, particularly if Trump finds himself scrambling to get the money for the wall.
"You've got a choice of civil asset forfeiture [to pay for the wall], increasing the deficit, or raising taxes on the American people," Sensenbrenner said. "I think that given the choice of those three alternatives of how to pay for it, it's easy to sell mine and not so easy to sell the other two."
